ITEMID: 001-57646
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1990
DOCNAME: CASE OF THYNNE, WILSON AND GUNNELL v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;Gaukur Jörundsson;N. Valticos;R. Pekkanen
TEXT: 9. The first applicant, Mr Michael Keith Thynne, is a British citizen, born in 1951.
10. On 27 October 1975 he pleaded guilty at the Central Criminal Court, London, to rape and buggery. On 24 November 1975 he was sentenced by the Recorder to life imprisonment on each count.
11. On 7 August 1975, within 36 hours of his release from prison, the applicant had gained entrance to a flat under the pretence that he was a policeman investigating a burglary that had just taken place there. The flat was occupied at the time by a 45-year-old woman whom he threatened to kill with a knife if she made a noise. He told her to take her clothes off and then raped and buggered her as well as inflicting some minor puncture wounds with a pair of scissors he had found in the flat.
12. The applicant had a long criminal record, having served various sentences of imprisonment for theft and burglary. In view of the nature of his personality disorder - described by a psychiatrist as "a severe psychopathic character disorder" - the Recorder considered both a hospital order and a long determinate sentence to be inappropriate. An indeterminate life sentence was imposed to enable the Home Secretary to release Mr Thynne once his condition had sufficiently improved for it to be reasonably safe to do so. The Recorder stated as follows:
"But for the psychiatric reports that I have seen I would impose on you a very long prison sentence. As it is, I am going to sentence you to life on each count in order that those in a position to observe any improvement in your personality disorder, those capable of carrying out any operative treatment which may [be] seen to be necessary, with your consent, on your frontal lobe, may judge the time when it is reasonably safe that you should be free."
13. The applicant applied to a single judge for leave to appeal to the Court of Appeal (Criminal Division) against the life sentences on the ground that they were manifestly excessive and wrong in principle as they resulted in custody for a longer time than the appropriate determinate sentence. His application was refused and so he renewed it to the full court.
Refusing leave to appeal on 22 March 1976, the court stated as follows:
"Without going into any more detail as to the offences, it is quite clear and indeed is accepted ... on the applicant’s behalf, that this was a very serious and violent attack upon this lady which involved not merely violence but the indecency and indignities to which she was subjected.
...
Life sentences are imposed in circumstances where the offence is so grave that even if there is little risk of repetition it merits such a severe, condign sentence and life sentences are also imposed where the public require protection and must have protection even though the gravity of the offence may not be so serious because there is a very real risk of repetition.
This case falls within neither of those categories which express extreme situations but undoubtedly the offences here were very grave indeed and undoubtedly, in the light of the medical reports on this man, the Court cannot be sure by any means that he would, in society, not give way to outbursts of this nature which would very seriously affect other persons.
In those circumstances the balancing exercise that the Court has to do is indeed a difficult one when presented with facts of this nature. We do not see the life sentence in this case as necessarily involving detention in custodial conditions for a very long period of time. It depends upon the regime to which he is subjected and the treatment that he can get. If a determinate sentence were to be substituted, then the Court would have to pass such a sentence as would ensure that he was kept in custody for a very long time indeed and, on the facts of this case as we see it, it will mean that probably the Court would err on the side of passing a sentence so long that it would result in his remaining in custody for a longer time than he probably will remain under a life sentence."
14. In May 1977 Mr Thynne was accepted for treatment at Grendon Underwood, a psychiatric prison. However, he decided not to accept the place offered as, in the light of medical evidence that he was not amenable to surgery or psychiatric treatment, he was told that he would not automatically be given early release.
15. Following representations made on the applicant’s behalf, his case was referred to the Joint Parole Board-Home Office Committee. In August 1980 the Committee recommended that it should be referred to the Local Review Committee in September 1981 by which time he would have been detained for six years. The Local Review Committee decided not to recommend release.
16. On 1 May 1982 the applicant absconded from an open prison and committed further offences. He was arrested on 26 July 1982 and was subsequently sentenced to six months’ imprisonment on charges of theft, unlawful possession of drugs and criminal damage. The sentence was to run concurrently with the existing life sentence.
17. On 22 October 1982 the Parole Board recommended that his case again be referred to the Local Review Committee nine months after his arrival at Maidstone Prison. On 16 March 1983, however, he escaped when he was visiting his mother who was gravely ill. He was recaptured two days later and the date of referral to the Local Review Committee was put back to June 1984. In June 1983 he was transferred to Blundestone Prison where he was examined by the prison department psychiatrist who found no evidence of mental illness and saw no need for psychiatric treatment. The Local Review Committee did not recommend release.
18. In January 1985 Ministers accepted that the punitive element of his sentence (the "tariff"- see paragraphs 52 and 53 below) had been satisfied and that risk was the sole remaining consideration in his continued detention.
19. In July 1985 the applicant’s case was referred to the Parole Board which recommended a further review two years later. In July 1987 the Local Review Committee again recommended that he remain in custody, but in May 1989 it recommended his release. However, following its further consideration of his case in December 1989, the Parole Board again recommended that he remain in custody with no release date but that there should be a further review one year after his transfer to an open prison.
20. The second applicant, Mr Benjamin Wilson, is a British citizen, born in 1916.
21. On 17 May 1972 he pleaded guilty at the Central Criminal Court, London, inter alia, to one count of buggery, two counts of attempted buggery and seven counts of indecent assault on boys under 16. He had a very long history of sexual offences and was sentenced to life imprisonment for the offence of buggery and seven years on each of the other nine counts, to be served concurrently.
22. In passing sentence the Judge said:
"I entirely accept that, to a large extent, you cannot help yourself. To that extent, your moral guilt is the less, but I have two duties to perform. One is a duty to find the correct sentence as far as you are concerned, having regard to your make-up, your physical and mental make-up. ’t control themselves.
I hope that, in the course of time a method of treatment for your particular freakish affliction can be found. I think it will be in the best interest of society generally, and yourself in particular, if some form of treatment for you could be found. What I am going to do in your case may sound harsh from your point of view, but it will be explained to you, no doubt, by your counsel hereafter, that it may in fact hold out more hope to you than if I merely went up to perhaps 4, 5 or 6 years, or even 7 years in a particular case.
The sentence of the court is that so far as the count of buggery is concerned, that is the eighth count on the indictment, you will go to prison for life. So far as the counts of attempted buggery and indecent assault are concerned, you will go to prison for a period of 7 years. All these sentences to be concurrent. Now I am sure that your counsel will have a word with you hereafter and will indicate what the situation is with regard to a life sentence, but as I say, I think my main duty in this particular case is to protect the public and the young public, in the light of what I have heard occurred in your case. I only hope that, in due course, some form of treatment, perhaps that to which the doctor refers in the medical report which I have seen, may help you."
23. In October 1972 the applicant’s application to a single judge for leave to appeal to the Court of Appeal (Criminal Division) was refused. Having renewed his application to the full court, he abandoned it in June 1973, a few days before it was to have been heard. In July 1976 he applied to the Court of Appeal to have his notice of abandonment set aside as a nullity. On 26 November 1976, the Court of Appeal turned down his application, but did give some consideration to the merits of the substantive appeal. In the words of Lord Justice Shaw:
"... the applicant has not established a situation in which this Court could properly allow him to withdraw the notice of abandonment. The Court has thought it right to go to some extent into the history of the matter in order to establish that even if such a withdrawal were permitted, it could not possibly be of advantage to the applicant, if we were to substitute for the life sentence a very long sentence that really would not be distinguishable from a life sentence. But if he wishes to take advantage of it, build himself up and strengthen his own character, he has far better prospects under an indeterminate sentence than under a long determinate sentence."
24. The applicant’s case was first referred to the Joint Parole Board-Home Office Committee after three years of his sentence and they recommended that his case be reviewed by the Local Review Committee after seven years of his sentence had been served.
Accordingly, in 1979, the Local Review Committee heard his case and referred it to the Parole Board, who, on 11 December 1981, recommended his release into a controlled protective environment with psychiatric supervision not later than December 1982. On 14 September 1982, pursuant to the Secretary of State’s authorisation of 3 September 1982, the applicant was released on licence on condition that he:
(i) live at a probation hostel;
(ii) co-operate with his probation officer;
(iii) attend appointments with his supervising consultant psychiatrist and take any prescribed treatment; and
(iv) refrain from any activity involving young boys without the permission of his probation officer.
25. On 11 February 1983, five months after his release on licence, the Parole Board recommended his recall and on 14 February 1983 the Secretary of State revoked his licence. The applicant on his return to prison was informed that he had been recalled because his conduct had given cause for concern and he had failed to co-operate with his supervising officer. The applicant exercised his right to make written representations against his recall, but on 16 September 1983, after referral by the Secretary of State, the Parole Board declined to change the decision.
26. On 6 April 1984 the applicant commenced judicial review proceedings to have this decision quashed on the ground that he had not been provided with adequate details of the reason for his recall as required by section 62(3) of the Criminal Justice Act 1967 and that he had accordingly been unable to make effective representations.
27. The Home Office conceded the inadequacy of the reasons given and provided a one page statement on 5 October 1984, which included the allegations that:
(i) the applicant had sought to get himself evicted from the probation hostel by refusing to pay his rent, by other residents of his offences and thus risking attack from them and by leaving a schoolboy’s cap in the sitting-room of the hostel as a warning that he intended to re-offend;
(ii) the applicant had protested against the probation officer’s refusal to allow him to take part in activities at the local sports centre;
(iii) the applicant had shown an interest in watching boys play football and his psychiatrist suspected that he was exploring ways of contacting boys again.
28. The Home Office then agreed to allow the applicant the opportunity to make further representations to the Parole Board, which he did, denying the allegations made against him. On 7 November 1984 his solicitors requested disclosure of a number of reports which were before the Parole Board when it made its decision.
29. On 20 March 1985 the Divisional Court considered the applicant’s case. The court quashed the Parole Board’s decision of 16 September 1983 (see paragraph 25 above) on the ground that it was flawed by a procedural impropriety, in that the applicant had not been given sufficient reasons to enable him to make proper representations.
30. By letter of 20 March 1985 the applicant’s lawyer requested disclosure of the probation report which alleged non-cooperation and asked for his client to be given an oral hearing with legal representation. However, the Parole Board did not answer this request and after a meeting on 22 March 1985 maintained the decision not to release Mr Wilson.
31. In December 1986 the Local Review Committee reconsidered the applicant’s case but made no recommendation to release him.
32. In June 1987 the Parole Board recommended that his case should be referred to the Local Review Committee in two years’ time. Accordingly, in June 1989, the Local Review Committee re-examined the applicant’s case but did not recommend release. In October 1989 the case was considered by the Parole Board which recommended a further review in two years’ time, with the proviso that should his health deteriorate to such an extent that he was no longer considered to be a risk, the case should be reviewed at an earlier date. The Secretary of State accepted this recommendation. The next review date is October 1991.
33. The third applicant, Mr Edward James Gunnell, is a British citizen, born in 1930.
34. On 15 December 1965, he was convicted at the Central Criminal Court, London, inter alia, of four offences of rape and two offences of attempted rape. He was sentenced to life imprisonment on each of the four counts of rape. On the two counts of attempted rape he was sentenced to seven years’ imprisonment, such sentences to run concurrently with each other and with the life sentences.
35. A pattern was discernible in a number of those offences. In four of them he entered houses, by some plausible excuse, where his victims, housewives and an au pair girl, were alone and by force - in one instance at knife-point - or by the threat of force had sexual intercourse with them.
36. According to uncontradicted medical evidence, the applicant was suffering from a "mental disorder" within the meaning of that term in the Mental Health Act 1959 (namely psychopathy) and needed constant care and treatment in a maximum security medical setting. Nevertheless the sentencing judge concluded that, because of the gravity of the offences, punishment had to be an element in this case, and that punishment could only be achieved by imprisonment. On passing sentence, the trial judge, Mr Justice Roskill, stated as follows:
"... These must be amongst the worst cases of rape or attempted rape ever to come before a court in this country. But though I accept you have spent much of your early life in mental institutions, and I accept certain evidence I have heard this morning that you are suffering from psychopathic disorder, the evidence leaves no doubt and can leave no doubt in anybody’s mind, that you did know what you were doing and you were well aware of the wickedness of what you had done.
I have listened with great attention to the medical evidence which I have had the opportunity of hearing this morning, and I have endeavoured to give all the weight to it that I properly can.It has been urged upon me that I should deal with you by making a hospital order and sending you to Rampton, where you will be kept in secure conditions and receive any treatment which you may require. In many cases it is clearly right for a court in discharging its responsibilities to have regard solely or mainly to the needs of the offender, but the present case in my view is one of such magnitude that I cannot only have regard to such needs. It is true, to send you to Rampton would involve you being kept under secure conditions and to that extent would keep the public from you. But there are other matters which I must take into account in the public interest, not the least of which is to make it clear that crimes of this kind committed against ordinary housewives in their ordinary homes doing their every day business while their men-folk are away at work are such as must, when brought home to a particular offender, be dealt with in such a way as to make plain that the law is concerned and ever will be concerned to protect people who suffer as you caused these women to suffer by these quite appalling sexual attacks that you made upon them. Punishment must be an element in this case, and that punishment can only be achieved by imprisonment. Imprisonment will afford security to the public from you, and the Home Secretary has ample power if and when the need for treatment arises, to transfer you to any institution where such treatment can be received.
In my judgment there is only one sentence which is appropriate in this case, and I will deal with count 3 first. Upon count 3 the sentence of the Court is that you be imprisoned for the term of your natural life. There will be corresponding life-sentences on counts 4, 5 and 7, upon which you stand convicted of rape."
37.On 22 June 1966 the Court of Appeal (Criminal Division) refused the applicant leave to appeal.
In the course of his judgment the Lord Chief Justice Parker said:
"It is a shocking case and there is no conceivable ground upon which he could succeed in his application for leave to appeal against conviction. Indeed, all he says is that he would like to call three of the women complainants to challenge their evidence all over again. This court refuses the extension of time in which to apply for leave to appeal against conviction.
In regard to the application for leave to appeal against sentence in regard to the rapes and attempted rapes, the applicant is thirty-five and, though he has committed offences before, none of them have been offences of violence or of a sexual nature, but he has a long mental history. As long ago as 1946 he was committed to Manor Hospital, Epsom, from which he escaped eighteen times. In 1950 he was admitted to Farmfield Hospital, Horley. He absconded three times. In 1951 he was transferred to Rampton Hospital where he made no attempts to escape, possibly knowing that it is difficult to do so. In 1959, however, he was released on licence from Rampton and in 1960 he was discharged from the operation of the Mental Deficiency Act 1959.
There was evidence, indeed it was uncontradicted, from the doctors that the applicant could be made the subject of a hospital order under the Mental Health Act 1959, in that he was a psychopath who needed constant care and treatment in a medical setting of maximum security such as Rampton and such a vacancy was then available. The learned judge refused to take that course and the ground of appeal here is that he was wrong in principle, when two doctors certified that the applicant was a fit subject for a hospital order and that treatment was warranted, not sending him to hospital but sending him to prison ...
This court would like it to be known that they agree with every word that the learned judge there said, indeed in an earlier case of Morris (1961) 2 QB 237, it was pointed out that there may be cases where although a court has powers to make a hospital order, yet where a punishment is required it would be right to send the offender to prison, it being recognised that the Home Secretary has ample powers under section 72 of the Mental Health Act 1959 to cause him to be treated in hospital when the need arises.
This court would like to add one further reason justifying the judge’s order in the present case. The applicant is obviously a dangerous psychopath. It is clear unless he is kept in circumstances of strict security he is liable to be a menace to the public. True, Rampton is said to be a secure hospital, but it does not mean that he would not get away from there. More important, it has to be observed that this dangerous psychopath has already been released on licence from Rampton. Bearing the interests of the public in mind, this court thinks it far safer that he should be kept in prison for as long as is necessary rather than he should be left to be dealt with as a hospital might deal with him, on a doctor and patient relationship under which it might be considered safe for him to be free, whereas from the public angle he remains a menace.
This court is quite satisfied that the sentence was right and the application is refused."
38. In December 1980 the applicant’s case was reviewed by the Parole Board in accordance with the provisions of Part III of the Criminal Justice Act 1967. They recommended his release in 15 months’ time, subject to his continued good conduct, the satisfactory completion of periods in open conditions and on the pre-release employment scheme, and suitable resettlement arrangements being made. After consulting the judiciary in accordance with section 61(1) of the 1967 Act (see paragraph 56 below), the Home Secretary accepted the Board’s recommendation and the applicant was given a provisional release date of 4 March 1982.
39. In March 1982 the applicant was released on licence on condition that he:
(i) co-operate with his supervisory probation officer;
(ii) attend Dr Field’s Clinic at St Leonard’s Hospital, London N1 for such care and treatment as recommended;
(iii) continue to take hormonal drug treatment, in tablet form, to control his sexual libido.
40. The applicant was given no reason to believe that he had failed to keep the terms of his licence in any significant way. However, two incidents occurred in January and February 1983 which led to the revocation of the applicant’s licence and his recall to prison.
41. The first incident was in January 1983 when he was stopped by a police officer and questioned about a woman’s complaint to the police that he had been in her back garden looking through her rear window. The applicant maintained that his intentions were completely innocent and that he was merely signalling to the lady he had seen in the house that he would like a glass of water with which to take his hormone tablets, which she duly got for him while he waited at the door. It was never alleged that the applicant had done anything to this woman, but it was later to be alleged that he had acted "suspiciously". On being told by the applicant that he had spent seventeen years in prison for rape, the police officer took him to the police station for questioning, but his release was authorised by a senior officer as there was no evidence of any crime having been committed.
42. The second incident was in February 1983 when the applicant was again stopped and questioned by the police following information that they had received from Finchley Road Police Station that he had been seen watching a woman cleaning her car and had then been found in her back garden. He was subsequently arrested some distance away and taken into custody by the same police officer who had arrested him in January. After some eight hours of detention, the Secretary of State revoked the applicant’s life licence under section 62 (2) of the 1967 Act because of the similarities between the applicant’s current behaviour and the circumstances in which the original offences were committed. He was taken to Pentonville Prison where, on arrival, he was told by an Assistant Governor that he would go before a reception board. When he did he was told that he had been recalled because his licence had been revoked and that he would be seen by another Assistant Governor and a member of the Local Review Committee and told the reasons for his recall when papers had been received from the Home Office.
43. The applicant was subsequently transferred to Wormwood Scrubs where an Assistant Governor, very soon after his arrival, had a number of conversations with him. Mr Gunnell, according to the High Court’s judgment of 2 November 1983 (see paragraph 48 below), made it abundantly plain that he fully realised that he had been brought back to prison because of the events which had taken place in January and February. He protested that he had done nothing wrong on those occasions but showed every indication that he fully realised why it was that the authorities had taken the decision which they did.
44. The applicant was interviewed on 1 March 1983 by a member of the Local Review Committee after having signed a standard form on 25 February 1983 to the effect that he wished the report from that interview to be submitted to the Parole Board as constituting his written representations, though he did in fact also himself make separate written representations.
The interviewer did not have the police reports in their full and final state, nonetheless they did contain sufficient information to acquaint him with what happened in January and February. He did not show the applicant the medical report nor the probation officer’s report although the latter was discussed.
45. On 4 March 1983 the case was referred by the Secretary of State - under section 62 (4) of the 1967 Act - to the Parole Board which then took a preliminary view confirming the revocation of the applicant’s licence. On 25 March the Parole Board rejected the applicant’s representations but made a non-binding recommendation (see paragraph 56 below) that, subject to satisfactory resettlement arrangements being made and to continuing psychiatric supervision, he should be released in a month’s time, namely on 25 April 1983.
46. In May 1983 the Secretary of State - after consultations with the Lord Chief Justice and the trial judge in accordance with section 67 (1) of the 1967 Act - did not accept the Board’s recommendation, but decided that the applicant’s case should be reviewed in March 1984. Mr Gunnell subsequently petitioned the Secretary of State, complaining that he had not been allowed to defend himself. The petition was rejected in a reply dated 3 August 1983. The applicant states that the reply contained the first written explanations of the reasons for his recall and the first official account in any detail of the allegations made against him.
47. On 9 August 1983 Mr Gunnell applied to the High Court for leave to move for judicial review of the decisions of the Parole Board and the Home Secretary confirming the initial revocation of the licence. He was granted leave on 18 August 1983.
At an interlocutory hearing on 10 October 1983, his applications for discovery of certain documents relating to the determination of his case by the Parole Board and Home Secretary were refused. They were again refused at the hearing of the substantive application for judicial review which was also dismissed on 2 November 1983.
48. An appeal against this decision to the Court of Appeal was also dismissed on 30 October 1984. The applicant’s case was reviewed again by the Parole Board and the Home Secretary in 1984 but he was not released. He was released on licence once more in September 1988 under the supervision of the Inner London Probation Service.
49. On 24 September 1990 the applicant pleaded guilty at the Central Criminal Court, London, to one charge of attempted rape, five charges of indecent assault and three charges of robbery. He was sentenced to life imprisonment, the life licence for his original offences having already been revoked.
50. A sentence of life imprisonment must be passed on any person convicted of murder - a mandatory life sentence. It may also be passed, in the exercise of the court’s discretion, on persons convicted of any of the offences for which life imprisonment is provided by the relevant legislation as the maximum penalty for the offence concerned - a discretionary life sentence. There are no statutory conditions for the imposition of a discretionary life sentence other than this, but its use in practice is reserved, broadly speaking, for cases where the offence is a very grave one in itself, and it appears that the accused is a person of unstable character likely to commit such offences in the future , thus making him dangerous to the public in respect of his probable future behaviour unless there is a change in his condition (see Hodgson (1967) 52 Criminal Appeal Reports 113, Picker (1970) 54 Criminal Appeal Reports 330; Wilkinson (1983) 5 Criminal Appeal Reports (S) 105).
In his judgment in R v. Wilkinson, Lord Chief Justice Lane said:
"It seems to us that the sentence of life imprisonment, other than where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With few exceptions ... it is reserved broadly speaking ... for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner’s progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large."
51. The use of the discretionary life sentence is distinguished in the practice of the English courts from the use of the determinate or fixed-term sentence of imprisonment. In fixing the length of a determinate sentence the most important principle is that it should be related to the gravity of the offence. It is subject to one-third remission of sentence for good behaviour and there is the possibility of parole once a third of the sentence has been served.
52. In three recent decisions (R v. Secretary of State for the Home Department, ex parte Handscomb and Others (1988) 86 Criminal Appeal Reports 59; R v. Secretary of State, ex parte Benson (1988) and R v. Secretary of State, ex parte Bradley (1990) as yet unreported), the Divisional Court has recognised that a discretionary life sentence prisoner should be required to serve no longer as punishment for his offence than the "tariff". This expression denotes the period of detention considered necessary to meet the requirements of retribution and deterrence.
53. In the case of Bradley, Lord Justice Stuart-Smith gave the following elucidation of the nature of the discretionary life sentence:
"The rationale or justification for a discretionary life sentence must surely be this: that in exceptional cases the interests of public safety cannot be sufficiently protected by imposing a determinate sentence even to the maximum extent permissible - i.e. the tariff sentence merited in the way of punishment, uplifted to a limited extent allowed by established case-law for the protection of the public. Rather it is necessary to cater for the presently perceived risk that, upon completion of any lawful determinate sentence, the prisoner would, if freed, remain a grave danger to society. This is achieved by passing a life sentence so as to ensure that the public will be protected and the risk reassessed after the tariff period expires.
...
... the sentencing Court recognises that passing a life sentence may well cause the offender to serve longer, and sometimes substantially longer, than his just desserts. It must then not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But, of course, the Court’s perception of that risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post-tariff stage the assessment comes to be made by the Board they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoner’s release."
54. By virtue of section 1 and schedule 2 of the Sexual Offences Act 1956, the maximum penalty for rape, and, by virtue of section 12(1) and schedule 2 of the same Act, for buggery of a boy under the age of 16, is life imprisonment.
55. According to the opinion of an expert in sentencing policy of the English courts, the practice of the Court of Appeal showed that, in the absence of evidence of mental instability and dangerousness, the sentence imposed was unlikely to exceed 10 years’ imprisonment for offences of buggery and 18 years’ in cases of serious rape (Affidavit of Dr D. A. Thomas sworn on 29 July 1988).
56. Under section 61 of the Criminal Justice Act 1967 the Secretary of State may only release on licence a person sentenced to life imprisonment if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice of England and the trial judge if available. By virtue of section 62(1) the Secretary of State may revoke the licence of a person whose recall to prison is recommended by the Parole Board. A prisoner recalled in such circumstances is entitled to be informed of the reasons for his recall and of his right to make representations. If he makes representations the Secretary of State must refer his case to the Board. Under section 62(2) the Secretary of State may himself revoke such a licence without consulting the Parole Board if it appears expedient in the public interest to do so before such consultation is practicable; but the case of a prisoner so recalled must be referred to the Board.
If the Board recommends the immediate release on licence of a recalled prisoner whose case is referred to it under section 62, the Secretary of State is bound to give effect to the recommendation.
57. Section 59 sets out the constitution and functions of the Parole Board and of local review committees:
"(1) For the purposes of exercising the functions conferred on it by this part of this Act as respects England and Wales there shall be a body known as the Parole Board ... consisting of a chairman and not less than four other members appointed by the Secretary of State.
...
(3) It shall be the duty of the Board to advise the Secretary of State with respect to -
(a) the release on licence under section 60(1) or 61, and the recall under section 62, of this Act of persons whose cases have been referred to the Board by the Secretary of State;
(b) the conditions of such licences and the variation or cancellation of such conditions; and
(c) any other matter so referred which is connected with the release or recall of persons to whom the said section 60 or 61 applies.
(4) The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say -
(a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained; and
(b) if in any particular case the Board thinks it is necessary to interview the person to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member; ...
(5) The documents to be given by the Secretary of State to the Board under the last foregoing subsection shall include -
(a) where the case referred to the Board is one of release under section 60 or 61 of this Act, any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection;
(b) where the case so referred relates to a person recalled under section 62 of this Act, any written representation made under that section.
(6) The Secretary of State may by rules make provision -
(a) for the establishment and constitution of local review committees having the duty of reviewing at such times or in such circumstances as may be prescribed by or determined under the rules the cases of persons who are or will become eligible for release under section 60 or 61 of this Act and reporting to the Secretary of State on their suitability for release on licence; and
(b) for the interview of such persons by a member of any such committee (not being a prisoner officer);
and rules under this subsection may make different provision for different cases."
As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides:
"1. The Parole Board shall include among its members -
(a) a person who holds or has held judicial office;
(b) a registered medical practitioner who is a psychiatrist;
(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or aftercare of discharged prisoners; and
(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders."
The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, each of which in the case of life prisoners includes a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59(1) of the 1967 Act) after consultation with the Lord Chief Justice.
58. Under section 59 (6) the Secretary of State has established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It is the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee review a case, a member of the Committee shall interview the prisoner if he is willing to be so interviewed.
59. The review procedures applicable to all life sentences within the framework of the Criminal Justice Act 1967 have evolved in four stages:
(a) When section 61 of the Criminal Justice Act 1967 came into operation it was the practice to refer all life sentence cases to the Parole Board when the prisoner had served not longer than seven years, irrespective of whether there was any prospect of early release. In making its recommendations to the Secretary of State as to the release of a life prisoner, the Board took into account the views of the judiciary as required by section 61.
(b) In 1973 a Joint Parole Board-Home Office Committee was set up to recommend to the Home Secretary a date for the first formal review by the Local Review Committee as the first stage in a review by the Parole Board (see paragraph 57 above). They gave initial consideration to the timing of the first review usually after the prisoner had been detained for about three years, but this system became less and less effective as the Committee only recommended dates in about half the cases referred to it. Under these arrangements, the judiciary were consulted - as required by section 61 of the 1967 Act - only at the stage when release seemed a realistic possibility.
(c) In 1983, the Joint Committee was disbanded and new arrangements were made for fixing the date of the first formal review by the Local Review Committee. Under these arrangements the judiciary were consulted, usually, after a life prisoner had been detained for about three years, and asked for their views on the period necessary to meet the requirements of retribution and deterrence for the offence - the tariff period. In the light of these views the Home Secretary would decide the date of the first reference of the case to the Local Review Committee, normally set for three years before the expiry of the tariff period.
(d) On 23 July 1987, in a parliamentary written answer to the House of Commons, the Home Secretary made the following statement in response to the Divisional Court judgment in the case of Handscomb and Others (see paragraph 52 above):
"I accept the conclusion of the Divisional Court that there are strong arguments for carrying out this consultation exercise" - with the judiciary on the question of the period necessary to meet the requirements of retribution and deterrence - "as soon as practicable following the imposition of a discretionary life sentence.
Following consultation with the Lord Chief Justice it has been agreed that the most satisfactory way of obtaining the judicial view is to ask the trial judge to write to me, through him, in every case where a discretionary life sentence is passed giving his view on the period necessary to meet the requirements of retribution and deterrence. This view will be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and will also take account of the notional period of the sentence which a prisoner might expect to have been remitted for good behaviour had a determinate sentence been passed. The date of the first formal review by the Parole Board machinery will then be fixed in accordance with the judicial view on the requirements of retribution and deterrence, and the review will, as before, normally take place three years before the expiry of that period. I have agreed with the Lord Chief Justice that this new procedure will be introduced with effect from 1 October 1987.
... I shall arrange for a review to be undertaken of all discretionary life sentence cases with a first formal review date of January 1988 or later. Where account has been taken of factors other than the judicial view on the requirements of retribution and deterrence in fixing the date, the date will be adjusted to bring it into line with the judicial view.
... In cases of prisoners serving life sentences for murder, where the sentence is not at the discretion of the court, the question of the notional equivalent determinate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidence in the system of justice) to be weighed in the balance in setting the first review date. I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving life sentences for the worst offences of violence fully reflects public concern about violent crime.
... no life sentence prisoner will be detained for more than 17 years without a formal review of his case even where the period thought necessary to meet the requirements of retribution and deterrence exceeds 20 years.
... However, as was made clear by the Divisional Court, the release of a life sentence prisoner is solely at my discretion and it is for me to decide, after receiving the Parole Board’s recommendation and after consulting the judiciary as required by section 61 (1) of the Criminal Justice Act 1967, when actual release should take place."
60. In addition to his right to make representations to the Parole Board under the provisions of the Criminal Justice Act 1967 (see paragraphs 56-59 above), a prisoner detained pursuant to a discretionary life sentence may take proceedings in the High Court to obtain the judicial review of any decision of the Parole Board or of the Home Secretary on the ground that it is tainted by illegality, irrationality or procedural impropriety (see judgment of 2 March 1987 in the Weeks case, Series A no. 114, pp. 18-19, paras. 30-31).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
5-5


ITEMID: 001-81873
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GLAVCHEVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Lyudmila Zakirovna Glavcheva, is a Ukrainian national who was born in 1951 and lives in the town of Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
On an unidentified date the applicant instituted proceedings in the Mykytivskyy District Court of Gorlovka against her employer, the “Donbasvuglezbagachennya” private joint stock company (ТОВ «Донбасвуглезбагачення»), claiming salary arrears.
On 24 July 2000 the court found for the applicant and awarded her 5,306.73 Ukrainian hryvnas.
In August 2000 the Mykytivskiy District Bailiffs’ Service instituted enforcement proceedings.
On 3 April 2001 by the decision of the Donetsk Regional Commercial Court the debtor was declared bankrupt. The writs of enforcement have been transferred to the liquidation commission. The judgement of 24 July 2000, however, has never been enforced.


ITEMID: 001-60535
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF MIGON v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 8. In 1992 the Tarnów Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of aggravated fraud, falsification of documents and issuing bad cheques. By a letter of 6 October 1993 the Tarnów Regional Prosecutor informed the applicant that the fact that summonses for questioning had been sent both to his new and to his old address did not in any way infringe his defence rights.
9. On 13 October 1993 the applicant informed the Tarnów Regional Prosecutor of a change of his address. On 15 October 1993 the Tarnów Regional Prosecutor issued a warrant for the applicant’s arrest, considering that there were strong grounds for believing that he had committed an offence constituting a serious danger to society, and that there was a risk of collusion and absconding as the applicant had failed to comply with certain summonses and had changed his address several times. On the same day the applicant was remanded in custody.
10. The applicant appealed against that decision. He submitted that the nature of the offence was such that all the evidence was contained in documents belonging to his company, which had already been seized by the prosecutor or kept by the banks. The witnesses in the case had already been heard by the prosecuting authorities. Thus, there was no risk of collusion as the applicant was not in a position to alter or suppress evidence. The applicant had usually complied with summonses except on the rare occasions when he had been unwell and had submitted relevant medical certificates, including a certificate drawn up by the Kraków Forensic Medicine Institute. There was no risk of his absconding as he had informed the prosecutor of his change of address and could not leave the country as his passport had been confiscated by virtue of a decision given in November 1991. The applicant further submitted that the amount he was accused of embezzling was so high solely as a result of the high rate of interest at a time of hyperinflation and that the amount could not be used as an argument in support of the seriousness of the offence concerned.
11. On 25 October 1993 the Tarnów Regional Court dismissed the applicant’s appeal against the detention order. The court first observed that the applicant had on several occasions failed to comply with the summonses without justification. In particular, the case file did not contain any documents showing that there had been justified medical grounds for his absence. Even though he had informed the prosecutor of his change of address, the address he had given appeared to be false as there was a convent at that address. Moreover, it seemed that the applicant did not live there. The court considered that in the light of the financial documents in the case file, the offence of which the applicant was suspected was serious enough to warrant detention on remand, the more so as the value of the embezzled property had been assessed without regard to the sums of statutory interest, contrary to the applicant’s submissions in his appeal.
12. On 6 November 1993 the prosecutor appointed an expert in accountancy to analyse certain financial documents belonging to the applicant’s companies that related to his credit applications in order to assess the damage caused by the offences with which the applicant had been charged.
13. On 8 November 1993 the applicant submitted medical certificates stating that he had been ill from 1 August 1993 to 10 September 1993. On the same date he also requested to be granted access to the case-file.
14. On 15 November 1993 the Tarnów Regional Prosecutor refused to authorise the applicant to meet his counsel in the absence of a police officer, considering that the applicant had had an opportunity to see his lawyer in the presence of a police officer each time he had requested to do so. There were no grounds on which to accept that this amounted to an undue restriction on the exercise of his defence rights. The fact that the applicant had not been communicative when talking to his lawyer seemed to stem from the defence tactics which he had adopted in the proceedings.
15. On the same date the prosecutor refused to allow the applicant’s lawyer access to the case-file.
16. The applicant filed an appeal, arguing, inter alia, that his defence rights had been unduly limited, in particular by the fact that neither he nor the lawyer had had any, albeit limited, access to the case-file, or to any of the evidence gathered so far in the proceedings. The only part of the file to which the applicant had been given access was the statement of charges and the arrest warrant. As a result, the role of his defence counsel had been rendered meaningless.
17. On 3 December 1993 the Tarnów Regional Prosecutor rejected the appeal, finding that no appeal lay against the contested decision, and considering that in any event this decision did not infringe the applicant’s defence rights, given that he would be granted access to the case-file later in the proceedings, at the stage specified in Article 277 of the Code of Criminal Procedure.
18. The applicant appealed, arguing that the decisions infringed his defence rights. The case-file, which so far numbered thirteen volumes, had not been made accessible to him or to his lawyer. Any knowledge that they had about the investigations stemmed from the decision to bring the charges against the applicant and from the decision to appoint the expert. This was clearly insufficient to enable them to conduct any effective defence.
19. On 8 December 1993 the Tarnów Regional Court quashed the refusal to allow the applicant to meet the counsel in the absence of a police officer. The court considered that the applicant had not given any ground on which to accept that he was seeking, by any unlawful methods, to jeopardise the investigations against him. Consequently, the contested decision had unduly limited his defence rights.
20. On 16 December 1993 the Tarnów Regional Prosecutor declined to consider the applicant’s request to be released, holding that the grounds on which the detention warrant had been issued were still valid, and that no new grounds such as to justify his release had been invoked by the applicant.
21. On 21 December 1993 the Kraków Appellate Prosecutor, having regard to the proper conduct of the investigations, which concerned charges of a large-scale fraud and in which new charges had been brought against new suspects and further developments were to be expected, upheld the refusal to allow access to the case-file.
22. On 31 December 1993 the Regional Prosecutor prolonged the investigations as, in view of new circumstances which were coming to light, further evidence had to be taken.
23. On 10 January 1994 the Tarnów Regional Court prolonged the applicant’s detention until 30 March 1994, considering, firstly, that the grounds on which the applicant had been detained were still valid, and, secondly, that a psychiatric examination had to be carried out, and an expert opinion had to be drafted by a certified accountant. The applicant appealed.
24. On 1 February 1994 the Kraków Court of Appeal dismissed the applicant’s appeal. The court considered that, in the light of the material gathered so far during the investigations, there were serious grounds for believing that the applicant had committed the offences in question. It was emphasised that the applicant had not questioned this in his appeal. The court also had regard to the fact that the offences in which the applicant seemed to have been involved had been committed on a large scale. Moreover, the offences were serious enough to warrant detention on remand. There was also a risk of collusion.
25. On 25 March 1994 the Tarnów Regional Court further prolonged the applicant’s detention until 31 May 1994. The court stated in its decision that neither the expert opinion nor the psychiatric report had yet been completed. The expert opinion had to be supplemented by further financial details, which would make it possible to assess the scale of the applicant’s fraudulent banking operations. The court considered that the risk of collusion persisted as the applicant had on several occasions failed to comply with the summonses. The court referred in this connection to its own decision of 25 October 1993. The court further commented unfavourably on the considerable delays that had occurred in interviewing the witnesses, as between 8 December 1993 and 25 March 1994 only four witnesses had been interviewed, whereas the prosecutor estimated in his submissions to the court that between one hundred and three hundred witnesses would have to be heard.
26. The applicant appealed, submitting, inter alia, that in the course of the preliminary investigations he had twice changed his address and had on the second occasion informed the prosecutor of the change, and that he in fact had complied with the summonses.
27. On 11 April 1994 the Tarnów Regional Prosecutor supplemented the charges against the applicant with further multiple charges of obtaining credit under false pretences, forgery of financial documents and issuing of bad cheques.
28. On 20 April 1994 the Kraków Court of Appeal dismissed the applicant’s appeal against the decision of 25 March 1994 as it found that the Regional Court had been justified in reaching the conclusion that there had been a risk of absconding and collusion. The court pointed out that the applicant had changed his address and that he had been trying to obtain a passport from various passport offices. Thus, his past conduct suggested that, if released, he would jeopardise the proper course of the investigations. The court also noted that the serious number of charges brought so far against the applicant and the scale of the offences with which he had been charged, argued in favour of his continued detention. Those factors indicated that in his actions the applicant had overstepped the border between taking a justified business risk and carrying out fraudulent financial operations, punishable under criminal law.
29. On 28 April 1994 the applicant requested access to the case-file and to the expert opinion prepared by a certified accountant.
30. On 29 April 1994 the Tarnów Regional Prosecutor refused the applicant access to the expert opinion, stating that the conclusions of the opinion indicated that certain witnesses should be interviewed in connection with further possible offences which, according to the expert report, were likely to have been committed. It would also be essential to question the expert. Therefore, granting the applicant access to the report would be premature as it would be prejudicial to the interests of the investigations. The prosecutor also refused the applicant access to the case-file.
31. On 11 May 1994 the applicant filed an appeal against this decision, contending, inter alia, that the prosecuting authorities had not been expeditious enough in questioning the witnesses, and that his defence rights had been breached in that the opinion, which seemed at that stage of the proceedings to constitute an essential piece of evidence, had not been communicated to him. On 16 May 1994 the Tarnów Regional Prosecutor rejected this appeal on the ground that no appeal lay against the contested decision.
32. On 20 May 1994 the Regional Prosecutor refused to release the applicant, pointing out that he had been arrested as he had failed to comply with the summonses and had tried to obtain a new passport after the old one had been invalidated in connection with the criminal proceedings. The taking of evidence had not been completed and certain evidence essential for the case had still to be taken.
33. On 21 May 1994 the applicant’s lawyer was served with the completed opinion of the accountancy expert.
34. On 26 May 1994 the Tarnów Regional Court prolonged the applicant’s detention until 15 August 1994, holding in particular that the grounds on which the detention had been ordered and maintained, still applied. The court noted that 80 witnesses had to be interviewed and that documents relating to over 100 various bank loans, taken out by the applicant’s companies had to be examined. The applicant appealed.
35. On 30 May 1994 one of the applicant’s lawyers was granted access to the expert opinion.
36. On 13 June 1994 the Tarnów Regional Prosecutor refused access to the case-file, which numbered over 50 volumes, considering inter alia that the investigations were coming to end.
37. On 22 June 1994 the Kraków Court of Appeal dismissed the appeal against the decision of 26 May 1994, considering that the charges against the applicant had been sufficiently substantiated by the evidence that had been gathered both at the time of the applicant’s arrest and later in the course of the proceedings. It was true that the investigations had not been conducted speedily enough, given that the applicant was in detention, which necessitated special diligence on the part of investigating authorities. That had also been the result of the particularly serious nature of the offence in question. However, the investigations had been unable to proceed for almost four months, while the proceedings concerning the review of the lawfulness of the applicant’s detention had been conducted. The court further stressed that new evidence was coming to light gradually, revealing new aspects of the case and thereby prolonging the investigations. Had the applicant cooperated with the prosecuting authorities, the proceedings would have progressed more quickly. He was not under such an obligation, but he had to be aware that his failure to do so had further prolonged the proceedings.
38. On 5 July 1994 the Tarnów Appellate Prosecutor gave his permission to the applicant to access the case-file of the investigations, considering that this would undoubtedly contribute to the acceleration of the proceedings and would make it possible for the suspect to formulate possible requests for further evidence to be taken.
39. On 5 August 1994 the Tarnów Regional Court again prolonged the applicant’s detention. The court noted that on 14 July 1994 certain evidence, concerning fraudulent transactions by the applicant’s company had been obtained from one of the banks. New witnesses would have to be heard in connection with these transactions. As new evidence had come to light, prolongation of his detention was necessary. Moreover, new charges had been brought against the applicant, which made it necessary to prolong his detention. The court further disagreed with the arguments advanced by the applicant that the charges against him had not been credible and considered that, quite to the contrary, the charges against him had been sufficiently substantiated to justify his further detention, which was also necessary to ensure the proper course of the proceedings. The court further noted that, contrary to the applicant’s assertions, further documentary evidence had been taken in July 1994, even though it was true that no further witnesses had been interviewed.
40. On 18 August 1994 the Regional Prosecutor refused to release the applicant.
41. On 15 August 1994 the Kraków Court of Appeal upheld the decision of 5 August 1994.
42. On 2 September 1994 the Regional Prosecutor again refused to release the applicant. On an unspecified date in September 1994 the applicant’s lawyer was informed that he could not have access to the case-file as it had been sent to the Supreme Court for the purposes of a decision to be given as to the prolongation of the applicant’s detention.
43. On 30 September 1994 the prosecutor appointed an expert to examine further accounting documents in the case-file.
44. On 6 October 1994 the applicant’s detention was prolonged by the Supreme Court.
45. On 14 October 1994 the Tarnów Regional Prosecutor informed the applicant’s lawyer that from 21 October 1994 the applicant would be brought from prison to the prosecutor’s office every day in order to have access to the case-file. The lawyer’s attention was drawn to the fact that the lawyer had so far failed to make use of his right to consult the file.
46. On 24 October 1994 the Regional Prosecutor permitted the applicant to make copies of and take notes from numerous documents in the case-file. On 29 December 1994 the Regional Prosecutor refused to give the applicant the copies of the prosecutor’s requests to have the applicant’s detention prolonged which had so far been examined in the proceedings, considering that those documents had not been included into the principal case-file, and that the applicant’s argument that he had to have access to them in order to exercise his defence rights was ill-founded.
47. On 11 January 1995 the bill of indictment was lodged with the Tarnów Regional Court. The applicant was charged with embezzling a sum of 80,000,000,000 (old) Polish zlotys to the detriment of six banks, issuing bad cheques and with other economic offences.
48. On 15 June 1995 the applicant was released.
49. The 1969 (“old”) Polish Code of Criminal Procedure applicable at the relevant time, listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
50
51. Article 217 §§ 1 (2) and (4) of the Code of Criminal Procedure, as applicable at the material time, provided that detention on remand could be imposed if, inter alia, there was a reasonable risk that an accused would attempt to abscond or to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means, or if an accused had been charged with an offence creating a serious danger to society.
52. At the material time there were three types of proceedings enabling a detainee to challenge the lawfulness of his or her detention and thus, possibly, to obtain release. Under Article 221 § 2 of the 1969 Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor. Under Article 222 §§ 2(1) and 3 he could appeal against a further decision by that court prolonging his detention at the prosecutor’s request. Lastly, under Article 214 an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case. Such an application had to be decided by the prosecutor or, after the bill of indictment had been lodged with the court competent to deal with the case, by that court, within three days.
53. Under all the relevant provisions of the Code of Criminal Procedure of 1969 read together, a detainee was entitled to appeal against any decision prolonging his or her detention on remand, regardless of whether it had been made at the investigative or judicial stage of proceedings.
54. The imposition and prolongation of preventive measures, including detention on remand, were examined by the courts in the course of proceedings held in camera. The presence of the parties at court sessions other than hearings, including sessions held in the proceedings concerning review of detention on remand, was governed by Articles 87 and 88 of the Code of Criminal Procedure, which, in so far as relevant, provided:
“The court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ...”
“A court session in camera may be attended by a prosecutor (...); other parties may attend if the law so provides.”
55. Access to the case file in the course of preliminary investigations was governed by Article 143 § 3 of the Code of Criminal Procedure, which provided, in so far as relevant, that permission to have access to and make copies of the documents in the case file in the course of preliminary investigations was granted only with the consent of the authority conducting the investigations.
56. Under Article 277 of the Code, after the preliminary investigations were completed and it was decided that there were grounds on which to prepare the bill of indictment, the prosecutor was to grant the suspect access to the case-file, inform him that he was entitled to avail himself of this right personally, and allow his counsel to have access to the file.
57. Until 4 August 1996, the date on which the 1973 Code of Criminal Procedure was extensively amended by the Law of 29 June 1995 on amendments to the Code of Criminal Procedure and other criminal statutes, the law did not fix any time-limits concerning detention on remand in judicial proceedings. During investigations, the prosecutor could order detention for up to three months. Prolongation of this period was possible by a court order, for a period not exceeding one year, and for any further periods, by a decision of the Supreme Court given at the request of the Prosecutor General.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-114604
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: CIOK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Piotr Ciok, is a Polish national, who was born in 1973 and lives in Barczewo. He was represented before the Court by Mr B. Hausler, a lawyer practising in Berlin.
3. On 14 March 2005 a Polish national, E.D., was found dead in Antwerp, Belgium. Subsequently, the applicant was arrested in Belgium in connection with her murder.
4. On 17 November 2006 the Anvers Regional Court convicted the applicant of homicide and sentenced him to life imprisonment.
5. On 9 March 2007 the judgment was upheld by the Antwerp Assize Court.
6. It appears that the Belgian authorities requested the Polish authorities to take over the execution of the applicant’s sentence. On 22 November 2007 they also decided that the applicant was to be expelled from Belgium and prohibited from returning for a period of ten years. The applicant did not give his consent to his transfer to Poland. On 16 December 2008 the Olsztyn Regional Court decided that it was possible to transfer the applicant to Poland under the Convention on the Transfer of Sentenced Persons (the Transfer Convention) and its Additional Protocol. Afterwards the Polish Ministry of Justice agreed to his transfer.
7. On 25 March 2009 the applicant was transferred to Poland.
8. On 26 May 2009 the Olsztyn Regional Court gave a ruling on the legal qualification of the offence under Polish law and on the enforcement of the sentence. It considered that the offence of which the applicant had been convicted in Belgium fulfilled the description of the offence of homicide prohibited by Article 148 § 1 of the Polish Criminal Code. The court further considered that this offence carried under Polish law a minimum sentence of eight years’ imprisonment or life imprisonment. Thus the sentence imposed in Belgium did not exceed the maximum prescribed by the law of the administering State and it was not necessary to adapt the sanction.
9. In consequence the court decided that the applicant would serve the sentence of life imprisonment in Poland. The court finally decided that the additional penalty of deprivation of civic rights imposed by the Belgian court could not be imposed as it had not been foreseen for the offence prohibited by Article 148 § 1 of the Criminal Code.
10. The applicant appealed against the ruling. He complained in particular about the decision not to apply regulations pertaining to conditional release that were binding in the sentencing country, Belgium.
11. On 18 June 2009 the Bialystok Court of Appeal upheld the judgment. The court amended the legal basis of the Regional Court’s judgment in that it considered that the latter court had correctly converted the applicant’s sentence according to Articles 9 § 1 (b) and 11 of the Transfer Convention. Moreover, the court admitted that the rules pertaining to conditional release differed between Poland and Belgium. In Poland a person in the applicant’s situation could apply for parole after having served twentyfive years’ imprisonment whereas in Belgium that term was shorter and amounted to ten years. However, the court decided not to rule on the matter of conditional release as the Belgian judgment did not include a provision on the length of the sentence the applicant would have to serve before he was eligible to apply for conditional release. Therefore, Polish rules on enforcement of sentences would be applicable to the case.
12. Under Article 78 § 3 of the Criminal Code a prisoner serving a life sentence is eligible for parole after serving a minimum of twenty-five years of his sentence.
13. The objectives of the 1983 Transfer Convention (European Treaty Series, ETS, No. 112), including its 1997 Additional Protocol (ETS No. 167), are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. According to the Preamble to the Transfer Convention, these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society.
14. Article 3 § 1 of the Transfer Convention enables the transfer of a sentenced person from “the sentencing State” to “the administering State” provided, inter alia, that the person in question is a national of the administering State; that he or she (or in some instances a legal representative) consents to the transfer; that the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the administering State or would constitute a criminal offence if committed on its territory; and that the sentencing and administering States both agree to the transfer.
15. Article 9 of the Transfer Convention (“Effect of transfer for administering State”) provides:
“1. The competent authorities of the administering State shall:
a. continue the enforcement of the sentence immediately or through a court or administrative order, under the conditions set out in Article 10, or
b. convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11.
3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”
16. Article 11 of the Transfer Convention (“Conversion of sentence”) provides:
“1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority:
a. shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing State;
b. may not convert a sanction involving deprivation of liberty to a pecuniary sanction;
c. shall deduct the full period of deprivation of liberty served by the sentenced person; and
d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”
17. Article 3 of the Additional Protocol (“Sentenced persons subject to an expulsion or deportation order”) provides:
“1. Upon being requested by the sentencing State, the administering State may, subject to the provisions of this Article, agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.”
18. The Additional Protocol entered into force in respect of Poland on 1 June 2000.


ITEMID: 001-108627
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KESHMIRI v. TURKEY (No. 2)
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 3. The applicant was born in 1958 and lives in Kırklareli.
4. In 1985 the applicant joined the People’s Mojahedin Organisation of Iran (“the PMOI”).
5. In 1986 he arrived in Iraq. He lived in the Al-Ashraf camp, where PMOI members were accommodated in Iraq, until he left the organisation in 2003. After leaving the PMOI he went to the Temporary Interview and Protection Facility (“TIPF”), a camp created by the United States forces in Iraq. This facility was subsequently named the Ashraf Refugee Camp (“ARC”).
6. On 5 May 2006, after being interviewed, the applicant was recognised as a refugee by the United Nations High Commissioner for Refugees (“the UNHCR”) Headquarters in Geneva during his stay in Iraq.
7. On an unspecified date the applicant arrived in Turkey on a false passport.
8. On 1 June 2008 the applicant was arrested by the Turkish security forces while attempting to leave for the island of Kos, Greece, from the port of Bodrum, on a false passport.
9. On an unspecified date the UNHCR branch office asked the national authorities to grant the applicant access to the asylum procedure in Turkey. This request was refused in view of the fact that the applicant’s presence in Turkey constituted a threat to national security given his membership of the PMOI.
10. On 1 August 2008 the applicant was transferred to the city of Van in eastern Turkey, apparently with a view to his deportation to Iran.
11. On 1 August 2008 the applicant’s representative lodged an application with the Court, requesting it to stop the applicant’s deportation to Iran and arguing under Articles 2 and 3 of the Convention that his removal to Iran would expose him to a real risk of ill-treatment (application no. 36370/08).
12. On the same day, the President of the Second Section decided to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Iran until further notice.
13. With reference to the interim measure under Rule 39 of the Rules of Court, the deportation proceedings were suspended and on 3 August 2008 the applicant was transferred to the Kırklareli Foreigners’ Admission and Accommodation Centre.
14. On 13 April 2010 the Second Section of the Court found that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Iran or Iraq (see Keshmiri v. Turkey, no. 36370/08, § 28, 13 April 2010).
15. On 25 May 2010 the General Security Directorate of the Ministry of the Interior (“the Ministry”) decided that the applicant was to be released from the Kırklareli Foreigners’ Admission and Accommodation Centre and issued with a temporary residence permit in Kırklareli. On 26 May 2010 the applicant was released accordingly. He is currently living in Kırklareli.
16. In the meantime, on 28 August 2009 a lawyer registered with the Istanbul Bar Association, Mr A. Yılmaz, had petitioned the Ministry for the applicant’s release from the Kırklareli Foreigners’ Admission and Accommodation Centre.
17. Upon the administrative authorities’ failure to reply within sixty days, which is considered to be a tacit refusal of the request under section 10 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), on 25 November 2009 Mr A. Yılmaz brought an action before the Ankara Administrative Court. He requested that the court quash the decision of the Ministry not to release his client, which decision infringed his right to liberty as a recognised refugee, and order a stay of execution of that decision pending the proceedings.
18. On 13 January 2010 the Ankara Administrative Court rejected the request for a stay of execution. Mr A. Yılmaz appealed against that decision.
19. On 10 February 2010 the Ankara Regional Administrative Court declined to examine the appeal request.
20. On 16 March 2010 the Ankara Administrative Court dismissed the applicant’s case. It held at the outset that the relevant legislation required the deportation of persons in the applicant’s position, that is, persons who had entered Turkey illegally and whose presence in the country posed a danger to public order and security. If, however, deportation had become unfeasible for some reason, then the individuals concerned would be accommodated at a place designated by the Ministry until such time as the deportation proceedings could be finalised. The Administrative Court noted that in the instant case the applicant’s deportation had come to a halt following the interim measure indicated by the European Court of Human Rights and he had therefore been placed in an accommodation centre in accordance with the law. By refusing his release, the administration had thus acted in accordance with the applicable laws. The administrative court also noted that granting temporary residence permits to persons awaiting deportation would render their monitoring and control very difficult.
21. The applicant appealed against the judgment of the Ankara Administrative Court. He claimed that he had been held at the Kırklareli Foreigners’ Admission and Accommodation Centre since 3 August 2008 against his will and that this deprivation of liberty had no basis in domestic law and lacked any legal safeguards. He moreover argued that he had not been released from detention despite the judgment of the European Court of Human Rights, which had ruled that his deportation would constitute a violation of Article 3 of the Convention. He also claimed that the administration had failed to submit any evidence in support of its allegation that he posed a threat to public order and security.
22. It appears that the appeal proceedings are still pending before the Supreme Administrative Court. However, in the meantime, the applicant was released from the Kırklareli Foreigners’ Admission and Accommodation Centre on 26 May 2010 upon the order of the Ministry (see paragraph 15 above).
23. A description of the relevant domestic law and practice, as well as the international material, may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-51, 22 September 2009).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4
VIOLATED_BULLETPOINTS: 5-1-f