ITEMID: 001-58593
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF T. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Independent tribunal);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings)
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 7. The applicant was born in August 1982.
On 12 February 1993, when he was ten years old, he and another ten-year-old boy, “V.” (the applicant in case no. 24888/94), had played truant from school and abducted a two-year-old boy from a shopping precinct, taken him on a journey of over two miles and then battered him to death and left him on a railway line to be run over.
8. The applicant and V. were arrested in February 1993 and detained pending trial.
9. Their trial took place over three weeks in November 1993, in public, at Preston Crown Court before a judge and twelve jurors. In the two months preceding the trial each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “child witness pack” containing books and games.
The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In the courtroom, the press benches and public gallery were full.
The trial was conducted with the formality of an adult criminal trial. The judge and counsel wore wigs and gowns. The procedure was, however, modified to a certain extent in view of the defendants' age. They were seated next to social workers in a specially raised dock. Their parents and lawyers were seated nearby. The hearing times were shortened to reflect the school day (10.30 a.m. to 3.30 p.m., with an hour's lunch break), and a ten-minute interval was taken every hour. During adjournments the defendants were allowed to spend time with their parents and social workers in a play area. The judge made it clear that he would adjourn whenever the social workers or defence lawyers told him that one of the defendants was showing signs of tiredness or stress. This occurred on one occasion.
10. At the opening of the trial on 1 November 1993 the judge made an order under section 39 of the Children and Young Persons Act 1933 (see paragraph 30 below) that there should be no publication of the names, addresses or other identifying details of the applicant or V. or publication of their photographs.
On the same day, the applicant's counsel made an application for a stay of the proceedings, on the grounds that the trial would be unfair due to the nature and extent of the media coverage. After hearing argument, the judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held. He referred to the warning that he had given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom.
11. During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew that what they were doing was wrong (see paragraph 27 below).
The applicant had refused to be examined by Dr Susan Bailey, a consultant psychiatrist instructed by the prosecution. Dr Eileen Vizard, a consultant child and adolescent psychiatrist who had originally been instructed by T.'s solicitors, was subpoenaed by the Crown to give evidence. In her report of 5 November 1993 prepared for the applicant's solicitors, Dr Vizard had expressed the opinion that the applicant presented as a boy of good or at least average intelligence who had answered questions spontaneously and appropriately and who would have known the difference between right and wrong in February of that year, more particularly that it was wrong to take a child from his mother, injure him and leave him on a railway line. In addition, she found that T. showed the signs of post-traumatic stress disorder, involving a constant preoccupation with the events of the offence, a generalised high level of anxiety and poor eating and sleeping patterns. This disorder, combined with the lack of any therapeutic work since the offence, limited his ability to instruct his lawyers and testify adequately in his own defence. At trial Dr Vizard stated that, although she considered that the applicant was fit to stand trial, she had some concern as to how the post-traumatic stress symptoms affected his understanding of the procedures.
The prosecution also called the headmistress at the school attended by the two boys. She stated that from the ages of four and five children were aware that it was wrong to strike another child with a weapon. She stated that V. and the applicant would have been aware that what they were doing was wrong. Another teacher gave evidence to the same effect.
12. In addition, evidence was given by persons who had witnessed V. and the applicant in the shopping centre from which the two-year-old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with V. and the applicant were replayed in court. Neither the applicant nor V. gave evidence.
13. In his summing-up to the jury, the trial judge noted that witnesses had arrived in court in a blaze of publicity and that many had faced a bevy of photographers. They had had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had had difficulty in speaking audibly. This was one of the factors to be borne in mind in assessing their evidence. He instructed the jury, inter alia, that the prosecution had to prove to a standard of sureness, in addition to the ingredients of the offences charged, that the applicant and V. knew that what they were doing was wrong.
14. On 24 November 1993, the jury convicted V. and the applicant of murder and abduction. Neither applicant made any appeal to the Court of Appeal against his conviction.
15. Following their conviction, the judge modified the order under section 39 of the 1933 Act (see paragraph 10 above) to allow the applicant and V.'s names, but no other details, to be published. The following day – 25 November 1993 – their names, photographs and other particulars were published in newspapers throughout the country. On 26 November 1993 the judge granted an injunction restraining, inter alia, the publication of the addresses where the boys were being detained or any other detail which could lead to information about their whereabouts, care or treatment being revealed.
16. In a report on the applicant dated November 1997, Dr Eve Jones of the Adolescent Forensic Service, who had worked with T. since May 1995, explained that “trust building has been a difficult and long drawn out process which is partly due to [T.'s] fear of retaliation and media interest and partly due to his innate fear and dislike of psychiatrists”. As part of the process of trust building, Dr Jones had agreed with the applicant that their sessions should be confidential, with progress being reported in general terms only. It follows that there is limited psychiatric evidence relating to, inter alia, the effect of the trial on the applicant.
17. In his memorial to the Court the applicant stated that, due to the conditions in which he was put on trial, he was unable to follow the proceedings or take decisions in his own best interests. He had been severely intimidated and caused feelings of anxiety and oppression by the procedures followed.
18. In a report on the applicant V. dated February 1998, Sir Michael Rutter, Professor of Child Psychiatry at the Institute of Psychiatry, University of London, observed:
“I have also been asked to comment on the likely mental and emotional effects on children in general, and on [V.] in particular, of the prolonged trial process being in public. In my opinion there are two negative aspects of the trial process as they apply to children of [V.'s] age. First, one serious consequence of the long time involved in a trial means that there is an inevitable delay in providing the psychological care and therapeutic help that is needed. A child of ten has many years of psychological development still to come and it is most important that there is not a prolonged hiatus when this is impeded by the trial process. In particular, when children have committed a serious act, such as killing another child, it is most important that they are able to come to terms with the reality of what they have done and with all that that means. That is not possible at a time when a trial is still underway and guilt has still to be decided by the court. Thus, I conclude that the very prolonged nature of the trial process is bound to be deleterious for a child as young as ten or eleven (or even older). The fact that the trial process is held in public and that the negative public reactions (often extreme negative reactions) are very obvious is a further potentially damaging factor. While it is crucially important for young people who have committed a serious act to accept both the seriousness of what they have done and the reality of their own responsibilities in the crime, this is made more difficult by the public nature of the trial process ...”
19. Following the applicant and V.'s conviction for murder, the judge sentenced them, as required by law, to detention during Her Majesty's pleasure (see paragraph 34 below).
He subsequently recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the “tariff” – see paragraphs 38-40 below). He commented that he could not determine the boys' relative culpability, and stated:
“Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required. Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others. ... If the defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been eighteen years. However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities. In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is eight years ... . Eight years is 'very very many years' for a ten or eleven year old. They are now children. In eight years' time they will be young men.”
20. The Lord Chief Justice recommended a tariff of ten years. The applicant's representatives made written representations to the Home Secretary, who was to fix the tariff period.
21. By a letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of twenty-five years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations.
The applicant's solicitors were given an opportunity to submit further representations to the Secretary of State.
22. By a letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated, inter alia:
“In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice. The Secretary of State takes fully into account the fact that you were only ten years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult. The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant. The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion. The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be eight years, and ten years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been eighteen years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of twenty-five years and not eighteen years as suggested by the trial judge. For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of fifteen years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases. The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate.”
23. The applicant instituted judicial review proceedings challenging, inter alia, the tariff which had been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994.
24. On 2 May 1996, the Divisional Court upheld part of the applicant's claims. On 30 July 1996, the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997, the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which even in exceptional circumstances treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and that, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his decision had been rendered unlawful (see further paragraph 41 below). The tariff set by the Secretary of State was accordingly quashed.
25. On 10 November 1997, the Secretary of State informed Parliament that, in the light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure, pursuant to which, inter alia, he would keep the tariff initially set under review in the light of the offender's progress and development. The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff.
26. At the time of the adoption of this judgment, no decision has been taken in respect of the applicant's tariff. The Government in their memorial informed the Court that although the applicant V. had submitted representations regarding the appropriate length of tariff, similar representations were still awaited in respect of T., and the Home Secretary was in addition seeking independent psychiatric advice regarding both detainees.
27. Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session 1992-93, Her Majesty's Stationary Office). At the time of the applicant's trial, a child between the ages of ten and fourteen was subject to a presumption that he did not know that what he was doing was wrong (doli incapax). This presumption had to be rebutted by the prosecution proving beyond reasonable doubt that, at the time of the offence, the child knew that the act was wrong as distinct from merely naughty or childish mischief (C. (a minor) v. the Director of Public Prosecutions [1996] Appeal Cases 1).
The doli incapax presumption has since been abolished with effect from 30 September 1998 (section 34 of the Crime and Disorder Act 1998).
28. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under eighteen years must be tried summarily in the Magistrates' Court, where the trial usually takes place in the specialist Youth Court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury.
29. Where a child is tried in the Youth Court, section 49 of the 1933 Act imposes an automatic prohibition restraining the media from reporting the child's name or personal details or from publishing his photograph or any other information which might lead to his identification. The court has a discretion to dispense with the restriction following conviction if it considers it in the public interest to do so.
30. Where a child is tried in the Crown Court, there is no restriction on the reporting of the proceedings unless the trial judge makes an order under section 39 of the 1933 Act, which provides:
“(1) In relation to any proceedings in any court ... the court may direct that –
(a) no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the direction of the court.
(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine ...”
This provision was extended by section 57(4) of the Children and Young Persons Act 1963 to cover sound and television broadcasts.
The Court of Appeal interpreting section 39 has held that, since Parliament intentionally distinguished between trial in a Youth Court, where there is a presumption against publicity, and trial in the Crown Court, where the presumption is reversed, there should be a good reason for the making of an order under section 39 of the 1933 Act (R. v. Lee (a minor) 96 Criminal Appeal Reports 188).
31. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead.
32. In the case of Kunnath v. the State ([1993] 1 Weekly Law Reports 1315), the Privy Council quashed the conviction of an uneducated peasant from Kerala in Southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter. The Privy Council stated, inter alia:
“It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant. The basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him.”
33. In England and Wales, adults convicted of murder are subject to mandatory life imprisonment (Murder (Abolition of Death Penalty) Act 1967). Adults convicted of certain violent or sexual offences, for example manslaughter, rape, or robbery, may be sentenced to life imprisonment at the discretion of the trial judge, if he or she considers that (i) the offence is grave and (ii) there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.
34. Offenders under the age of eighteen who are convicted of murder are automatically to be detained “during Her Majesty's pleasure”, in accordance with section 53(1) of the Children and Young Persons Act 1933 (as amended), which provides:
“A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct.”
Until the age of eighteen a child or young person detained during Her Majesty's pleasure will be held at a children's home or other institution providing facilities appropriate to his age. At the age of eighteen, the detainee becomes liable to be transferred to a Young Offenders' Institution and, at the age of twenty-one, to detention in the same institution as an adult sentenced to life imprisonment for murder.
35. At the time of the applicant's conviction the effect of the sentence of detention during Her Majesty's pleasure was that the child or young person was detained for an indeterminate period, the duration of which was wholly within the discretion of the Home Secretary. The Secretary of State had a discretion to refer the case of a detained child to the Parole Board for its advice and, if so advised by the Parole Board, had a discretion to decide to order the child's release (Criminal Justice Act 1991 (“the 1991 Act”), sections 35(2) and (3) and 43(2); see the speech of Lord Browne-Wilkinson in the House of Lords, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407 at p. 492A-F, hereafter “Ex parte V. and T.”).
36. On 1 October 1997, section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgments of the European Court in the Hussain and Singh cases (Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I, p. 252, and Singh v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired (see paragraphs 38-40 below), it shall be for the Parole Board, and not, as previously, for the Secretary of State, to decide whether it is safe to release on licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before the age of eighteen.
37. A person detained during Her Majesty's pleasure who is released on licence is liable to be recalled throughout his or her life, subject to the decision of the Parole Board.
38. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T., op. cit., at pp. 492G-493A).
39. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public.
40. A different regime, however, applies under the 1991 Act to persons detained during Her Majesty's pleasure or serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] Appeal Cases 531, and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).).
41. In the judicial review proceedings brought by the applicant (Ex parte V. and T., op. cit.), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise in respect of sentences of detention during Her Majesty's pleasure.
Lord Steyn held:
“The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.”
Lord Hope held:
“But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ... If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...”
Lord Hope also commented on the imposition of a tariff on a child offender:
“A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.”
Lord Goff stated, inter alia:
“... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful. In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment ...”
42. On 10 November 1997, the Secretary of State announced that, in the light of the House of Lords' decision, he would adopt the following policy in respect of fixing the tariff for young offenders convicted of murder and detained during Her Majesty's pleasure:
“I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind; I shall continue to invite representations on the prisoner's behalf and give reasons for decisions. Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers. When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate ...”
43. The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. They provide, as relevant:
“4. Age of criminal responsibility
4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.
Commentary
The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.).
Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable.
...
8. Protection of privacy
8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.
...
17. Guiding principles in adjudication and disposition
17.1 The disposition of the competent authorities shall be guided by the following principles:
(a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
...
(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.
...
Commentary
...
Rule 17.1(b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person.
...”
44. This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.
Article 3(i) of the UN Convention states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 37(a) and (b) provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ...”
Article 40 provides as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society.
2. To this end ... the States Parties shall, in particular, ensure that:
...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
...
(vii.) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular:
(a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal laws;
(b) whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights are fully respected.
...”
45. In its concluding observations in respect of the United Kingdom (CRC/C/15/add.34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the UN Convention stated, inter alia:
“35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented ...
36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom ...”
46. The ICCPR provides in Article 14(4), which broadly corresponds to Article 6 of the European Convention, that:
“In the case of juvenile persons, the procedure shall be such as will take account of their age, and the desirability of promoting their rehabilitation.”
47. The above recommendation, adopted by the Committee of Ministers on 17 September 1987, states, inter alia:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Considering that social reactions to juvenile delinquency should take account of the personality and specific needs of minors, and that the latter need specialised interventions and, where appropriate, specialised treatment, based in particular on the principles embodied in the United Nations Declaration of the Rights of the Child;
Convinced that the penal system for minors should continue to be characterised by its objective of education and social integration ...;
...
Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”),
Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
...
4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action;
5. to avoiding committing minors to adult courts, where juvenile courts exist;
...
8. to reinforcing the legal position of minors throughout the proceedings by recognising inter alia:
...
the right of juveniles to respect for their private lives;
...”
48. The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many Eastern European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and Andorra; and eighteen in Spain, Belgium and Luxembourg.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-4
6-1
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-a


ITEMID: 001-121993
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: RADOVANOVIĆ AND PETROVIĆ v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
TEXT: 1. The applicants, Ms Danica Radovanović (“the first applicant”) and Ms Ružica Petrović (“the second applicant”), are Serbian nationals who were born in 1952 and 1925 and lived in Lazarevac and Belgrade, respectively.
2. Both applicants were represented before the Court by the Belgrade Centre for Human Rights, a human rights organisation based in Serbia. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 1971 the first applicant married M.R., and during their marriage she gave birth to their two children.
5. On 21 November 1989 the first applicant and M.R. were divorced by consent before the District Court in Belgrade. The first applicant’s children were awarded child maintenance, while the first applicant herself never sought maintenance from her former husband.
6. The first applicant maintained that after the divorce she and M.R. were reconciled and started living together again. In the years that followed, they continued living as cohabitants (vanbračni drugovi).
7. On 14 October 2005 M.R. died as a consequence of an accident at work.
8. On 18 November 2005 the first applicant filed a request with the Pensions and Disability Insurance Fund (“the PDIF”), requesting to be awarded a survivor’s pension.
9. On 10 February 2006 the PDIF’s branch in Belgrade rejected the first applicant’s request, finding that she had no standing to claim a survivor’s pension.
10. On 26 April 2006 the PDIF’s Directorate confirmed the decision of 10 February 2006.
11. On 20 October 2006 the District Court upheld the decisions of 10 February 2006 and 26 April 2006, while acknowledging that the first applicant and her former husband had continued living as cohabitants. The District Court further explained that the first applicant was not entitled to a survivor’s pension since in the divorce proceedings she had not been awarded maintenance (see paragraph 30 below, Article 28 § 2 of the Pensions and Disability Insurance Act).
12. On 26 July 2007 the first applicant acquired the right to a disability pension.
13. On 23 December 1948 the second applicant married Č.P.
14. On 29 June 1966 the District Court in Belgrade dissolved their marriage, noting, inter alia, that the parties had stopped living together in 1965. The applicant’s children were awarded child maintenance, while the applicant herself never sought maintenance from her former husband.
15. The second applicant maintained that following the divorce she and Č.P. continued living together as cohabitants, and that their children were never aware that their parents were in fact not married.
16. Throughout this partnership the second applicant was never employed, and enjoyed benefits based on Č.P.’s health insurance.
17. On 15 November 2004 Č.P. died.
18. On 6 April 2005 the second applicant filed a request with the PDIF, seeking a survivor’s pension.
19. On 14 March 2005 the PDIF’s branch in Belgrade rejected the second applicant’s request, since in the divorce judgment she had not been awarded maintenance (see paragraph 30 below).
20. On 1 June 2005 the PDIF’s Directorate confirmed the decision of 14 March 2005, acknowledging that the second applicant and her former husband had continued living as cohabitants.
21. On 6 October 2005 and 20 September 2006 the District Court and the Supreme Court respectively upheld the decision of 14 March 2005. On 28 December 2006 the second applicant received the Supreme Court’s decision, rejecting her appeal on points of law (zahtev za vanredno preispitivanje sudske odluke) on its merits. The Supreme Court explained that the second applicant was not entitled to a survivor’s pension since the divorce court had not awarded her maintenance (see paragraph 30 below).
22. According to the documents contained in the case file, throughout the above proceedings, the applicants argued that they were entitled to their survivors’ pensions, respectively, since they had continued living with their former spouses and the latter had also continued providing them with maintenance on a voluntary basis.
23. Article 29 guaranteed equality between children born inside and outside of marriage.
24. Article 9 § 3 stated that all international human rights treaties valid in the territory of Serbia and Montenegro would be directly applicable.
25. Article 7 provided, inter alia, that all human rights guaranteed by a binding international treaty would be directly applicable.
26. Article 18 § 2 provides, inter alia, that all ratified international human rights treaties shall be directly applicable.
27. Article 21 § 3 provides that “[a]ll direct or indirect discrimination based on any ground, particularly on the grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability shall be prohibited.”
28. Article 62 § 5 provides that “a cohabiting partnership (vanbračna zajednica) shall be equal to marriage, under the conditions set forth by law”.
29. This Constitution entered into force on 8 November 2006.
30. The right to a survivor’s pension shall be granted, inter alia, to family members of a deceased insured person who had paid the relevant contributions for at least five years, as well as to family members of a person who had already been granted a pension (Article 27). Eligible family members shall include, inter alios, the married partner (bračni drug) of the deceased (Article 28 § 1). The right to a survivor’s pension shall likewise apply to a divorced partner (bračni drug iz razvedenog braka), where a court had already established his or her right to maintenance in the course of the divorce proceedings (Article 28 § 2).
31. A survivor’s pension shall be granted to the deceased’s children under the age of 15. Beyond that, children shall be entitled to the said pension if they are attending secondary or higher education, but even then only until the ages of 20 and 26 respectively. Where the children’s education has been interrupted due to a disease, they shall be entitled to the pension for an additional period corresponding to the duration of the disease in question. When the children’s education has been interrupted because of their military service, the pension shall be paid until the age of 27. Should the children becomes unable to live and work independently before reaching the relevant age, they shall be entitled to a pension, but should the children become unable to do so only later, but before the insured parent dies, they shall be entitled to a pension only if they had been financially supported by that parent until his or her death. Such children, as well as disabled children, shall also be entitled to a pension should they become unemployed or otherwise cease with their business activities (Article 31).
32. Should one acquire a right to a disability pension, one shall no longer be entitled to a survivor’s pension (Articles 117 § 2 and 119, taken together).
33. One’s entitlement to a pension or disability insurance (osnov osiguranja) cannot be established on the basis of witness statements (Article 138 § 3).
34. The latest amendments to the Act entered into force on 1 January 2011, introducing certain changes to the pension and disability benefits system, mostly relating to the retirement age. When the question of the possibility to grant cohabitants equal rights in respect of the survivor’s pension was raised, the State Secretary in the Ministry for Labour and Social Policy, who was at the same time the head of the working group on pension reform, was quoted as having said, “it is hard to prove the existence of such partnerships”; “[i]ntroducing this right would mean a higher number of retired persons, and an increase in expenses” (Ms R.T., in a statement to the “Press” newspaper, 14 January 2011).
35. Articles 13 § 3 and 30, taken together, provide that cohabitants of deceased veterans shall, under certain conditions, be entitled to a survivor’s disability pension (pravo na porodičnu invalidninu) if they have children in common.
36. Article 24 provides that compulsory health insurance shall be provided to the family members of the insured. Cohabitants are considered to be immediate family and are granted equal rights to married partners on the condition that they have shared a household for at least two years before filing the request.
37. This Act, read in conjunction with the Health Insurance Act, provides, inter alia, that cohabitants and married partners alike shall enjoy equal treatment as regards the Government-supported programme of in vitro fertilisation.
38. Articles 12, 12a and 13 provide that cohabitants shall be treated the same as married partners in respect of their entitlement to various welfare benefits.
39. Article 4 defines cohabitation as a longer partnership (trajnija zajednica života) between a man and a woman, where there are no obstacles to them marrying (for example, another marriage, blood relationship and so on), and where the partners have the same rights and duties as those afforded to married partners, “under the conditions set forth in this Act”.
40. Articles 152 and 191 provide that cohabitants shall have the right to request maintenance from one another, and that any property obtained during their partnership shall be their common property.
41. Article 187, taken together with Article 191, provides that cohabitants shall also be jointly responsible for certain obligations incurred during their partnership.
42. Article 9 § 2 provides that the deceased’s children and married partner shall inherit equal shares of his or her estate.
43. This Act makes no reference to cohabitants. The Čačak District Court, however, found that one cohabitant does not have the right to inherit the property of the other following his or her death (judgment of 18 April 2007, Gž. No. 454/07).
44. Articles 18 § 2 and 49 provide, inter alia, that should an appeal on points of law be accepted by the Supreme Court, the impugned decision may be overturned or quashed, and that in the latter case a re-trial before the lower court may be ordered.
45. Cohabitants and married partners enjoy equal treatment as regards, inter alia, the following: (a) deciding on whether to donate their deceased partner’s organs to medical institutions for educational purposes (the Health Protection Act, Zakon o zdravstvenoj zaštiti; published in OG RS nos. 107/05, 72/09, 88/10, 99/10, 57/11 and 119/12; Article 226); (b) the assessment of whether an official can be deemed to be in a conflict of interest (the Prevention of Conflicts of Interest Act, Zakon o sprečavanju sukoba interesa pri vršenju javnih funkcija; published in OG RS no. 43/04, Article 4); (c) an official’s obligation to report his or her property and financial status to the Anti-Corruption Agency (the Anti-Corruption Agency Act, Zakon o Agenciji za borbu protiv korupcije, published in OG RS nos. 97/08, 53/10 and 66/11, Article 43 § 2); and (d) various procedural contexts, civil and criminal (see the Code of Criminal Procedure, Zakonik o krivičnom postupku, published in the Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02, as well as in OG RS nos. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10, Articles 56, 61 § 6, 68 § 2, 98 § 1 (1) and 364 § 2; see also the Civil Proceedings Act, Zakon o parničnom postupku, published in OG RS nos. 72/11, Articles 67 § 1 (3) and 249 § 1).
46. The Foreigners Act (Zakon o strancima; published in OG RS no. 97/08) provides that temporary residence (longer than ninety days) may be granted to immediate family members for reasons of family reunification (Article 26 § 1 (3)). This includes, inter alios, married partners (Article 32 § 2). In practice, however, cohabitants have the same rights.
47. There is no possibility, according to Serbian legislation, to officially register a cohabiting partnership, nor does there exist an equivalent of, or a document similar to, the family record book.
48. On 30 June 2011 the Constitutional Court rejected a motion seeking, inter alia, to have Article 28 of the Pensions and Disability Insurance Act declared unconstitutional. It did so because it lacked the power to legislate (“Ustavni sud ... ne stvara normu ... [, on] ... nema ulogu i ovlašćenje tzv. pozitivnog zakonodavca ...”). In its reasoning, however, the Constitutional Court further opined as follows:
“... [T]he Constitutional Court notes that the Constitution ... has established that cohabitation is equal to marriage in accordance with the law ... [It has therefore] ... decided to send a letter ... to the Parliament in which it will point out the need for the contested provisions of Article 28 ... to be brought in line ... with the Constitution and ratified international instruments.”


ITEMID: 001-115465
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: EURO MARKETING SP. Z O.O. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney;Zdravka Kalaydjieva
TEXT: 1. The applicant is a limited liability company with its registered office in Lublin. It was represented by Mr R. Choroszyński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 1995 the applicant company acquired the right of perpetual use of a plot of land (prawo użytkowania wieczystego) located at 3 Unicka Street in Lublin. It appears that it carried out some business activity on the plot.
4. On 10 August 2006 the applicant company instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot.
5. On 7 December 2006 the Mayor of Lublin granted planning permission. The decision was served on the Warsaw Jewish Religious Community (Gmina Wyznaniowa Żydowska w Warszawie; “the Community”) which owned an adjacent plot.
6. On 2 January 2007 the Community appealed against the decision of the Mayor. It argued that on 28 December 1998 it had filed an application with the Property Commission on Jewish Religious Communities (Komisja Regulacyjna ds. Gmin Wyznaniowych Żydowskich, “the Commission”) to institute so-called regularisation proceedings (postępowanie regulacyjne) pursuant to the Law of 20 February 1997 on relations between the State and the Jewish Communities in Poland (“the 1997 Act”). In those proceedings the Community sought, inter alia, an award of compensation for properties located on Unicka Street, including the property which the applicant company had acquired as a “perpetual user”.
7. The Community argued that since the regularisation proceedings in respect of the said plot were pending, the administrative proceedings concerning the grant of planning permission should be suspended pursuant to section 32 § 4 of the 1997 Act.
8. The Lublin Governor and the Lublin Municipality were parties to the regularisation proceedings.
9. The applicant company objected to the Community’s appeal, relying on section 30 § 4 of the 1997 Act. This provision stipulated that regularisation proceedings could not affect the rights of third parties.
10. On 22 February 2007 the Lublin Local Government Board of Appeal quashed the Lublin Mayor’s decision of 7 December 2006 and remitted the case to him. It observed that in accordance with section 32 § 4 of the 1997 Act a court or administrative proceedings concerning a property which was subject to regularisation proceedings should be suspended. However, a decision on the suspension fell within the competence of the first-instance authority.
11. The applicant company lodged an appeal against that decision with the Lublin Regional Administrative Court. It argued, amongst others, that the Community had not sought restitution of the plot which the applicant company had acquired as a “perpetual user” in 1995. The 1997 Act entered into force on 10 May 1997 and thus could not affect the relations between the Community and the applicant company. Furthermore, the applicant company submitted that its vested rights to the plot had been violated.
12. On 14 June 2007 the Lublin Regional Administrative Court dismissed the appeal. It found that in accordance with the Law on Local Planning an administrative authority could grant planning permission provided that a number of specific conditions were met. One of the conditions was the compliance with other relevant laws and the 1997 Act belonged to that category. The court found that the Community had instituted regularisation proceedings in respect of, among others, the plot subject to the administrative proceedings, and that those regularisation proceedings were still pending. In those circumstances the suspension of the administrative proceedings pursuant to section 32 § 4 of the 1997 Act was justified. It noted that it was necessary to quash the decision of the Mayor of Lublin granting planning permission since that decision should not have been issued given the statutory obligation to suspend the administrative proceedings on account of the pending regularisation proceedings.
13. The applicant company lodged a cassation appeal with the Supreme Administrative Court which was dismissed on 16 April 2008. This court upheld the lower court’s judgment. In addition, it observed that the Regional Administrative Court was not competent to review the legality of the Commission’s acts, such as its allegedly flawed decision to institute the regularisation proceedings.
14. The case was remitted to the Mayor of Lublin. On 10 September 2008 the Mayor stayed the administrative proceedings concerning the applicant company’s request for planning permission on the ground that the regularisation proceedings in respect of the same property had been pending. The applicant company did not appeal this decision. Neither did it request to resume the proceedings.
15. On 18 September 2008 the applicant company lodged a constitutional complaint with the Constitutional Court. It alleged that sections 32 §§ 1, 2 and 4 and 33 § 4-5 of the 1997 Act were unconstitutional. It argued that those provisions had violated its right to property, the right to a fair trial and the right to review of administrative decisions. The applicant company referred to the Supreme Administrative Court’s judgment of 16 April 2008 as a final decision in the case.
16. On 30 December 2008 the applicant company concluded a contract with company L. and transferred to it the right of perpetual use of the plot of land at issue and the right of ownership of the buildings constructed on the plot.
17. Company L. instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot.
18. On 20 March 2009 the Property Commission on Jewish Religious Communities informed the parties to the regularisation proceedings that it did not reach a decision in respect of the property located at 3 Unicka Street. Subsequently, the Community filed a compensation claim against the State with the Lublin Regional Court. That claim was dismissed on 10 June 2010.
19. On 26 November 2009 the Mayor of Lublin granted planning permission to company L. Subsequently the right of perpetual use was transferred to company W.N. On 27 April 2012 the Mayor of Lublin granted company W.N. a building permit for the construction of a block of flats.
20. On 28 February 2012 the Constitutional Court discontinued the proceedings instituted by the applicant company. It emphasised that at the time of the lodging of the constitutional complaint the issue of suspension of the proceedings for planning permission had not been finally determined. It found that the Supreme Administrative Court’s judgment of 16 April 2008 had not constituted a final ruling with regard to the applicant company’s property rights to the plot in question. A possible interference with the claimant’s property rights may have occurred as a result of the suspension of the administrative proceedings for planning permission in respect of the property which the claimant used as a “perpetual user” on account of the pending regularisation proceedings. The Constitutional Court found that the applicant company had not exhausted the available domestic remedies as it should have appealed against the decision on the suspension of the administrative proceedings for planning permission. Accordingly, its constitutional complaint was premature.
21. The Law of 20 February 1997 on relations between the State and the Jewish Religious Communities in Poland (“the 1997 Act”) entered into force on 10 May 2007.
Section 30 § 1 of the 1997 Act provides that Jewish Religious Communities may request the institution of proceedings (the so-called “regularisation proceedings”) with a view to restitution of their properties which on 1 September 1939 had been owned by them or other Jewish legal persons.
Section 30 § 4 of the 1997 Act expressly provides that the regularisation proceedings may not affect the rights acquired by third parties.
Section 31 stipulates that the regularisation may consist of:
1) transfer of the ownership of property,
2) the grant of suitable alternative property,
3) the award of compensation if neither of the above solutions is possible.
Section 32 § 1 of the 1997 Act provides that regularisation proceedings are conducted by the Property Commission on the Jewish Religious Communities (Komisja Regulacyjna) composed in equal numbers of the representatives nominated by the Minister of Internal Affairs and the Jewish Religious Communities. Applications are decided by adjudicatory panels composed of two representatives of the Minister and two representatives of the Communities.
The parties to the regularisation proceedings are the claimant and all interested State, local government and religious entities (Section 32 § 2).
Section 32 § 4 states:
“Court or administrative proceedings with regard to properties referred to in section 30 shall be suspended, ...”.
Section 33 § 3 provides that no appeal lies against decisions of the adjudicatory panels of the Property Commission.
22. The right of perpetual use is defined in Articles 232 et seq. of the Civil Code. It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person the full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of it being declared void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.


ITEMID: 001-106249
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LISICHENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: The applicant, Mr Vladimir Borisovich Lisichenko, is a Ukrainian national who was born in 1954 and lives in Mariupol. 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.
In June 2003 the applicant instituted proceedings in the Ordzhonikidzevskyy District Court of Mariupol against the Head of the local department of the Pension Fund, seeking recalculation of his pension. In his claim the applicant stated, in particular, that under Article 46 of the Constitution he was entitled to a pension equal to the amount of minimum living standard. However, his pension was lower than the standard effective at the relevant time.
On 19 September 2003 the court rejected the applicant’s claim as unfounded, stating that the amount of his pension had been determined correctly under the applicable provisions of the pension legislation. It further specified that the applicant’s pension could not be topped up to the amount of minimum living standard as this had not been provided for in the pension legislation.
On 22 December 2003 the Donetsk Regional Court of Appeal upheld the decision of 19 September 2003, noting that the applicable pension legislation did not provide for an increase of the applicant’s pension to the amount of minimum living standard.
On 20 December 2006 the Higher Administrative Court upheld the decisions of the lower courts, after finding that the applicant’s pension had been determined in accordance with pension legislation.
The relevant domestic law is set out in the judgment case of Pronina v. Ukraine (no. 63566/00, §§ 13-19, 18 July 2006).


ITEMID: 001-60145
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF GHIDOTTI v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (estoppel);Violation of P1-1;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant is the owner of an apartment in Milan, which she had let to C.F.
9. In a registered letter of 13 June 1989, the applicant informed the tenant that she intended to terminate the lease expiring on 31 December 1989 and asked her to vacate the premises by that date.
10. In a writ served on the tenant on 23 November 1989, the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
11. By a decision of 28 November 1989, which was made enforceable on 1 December 1989, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1990.
12. On 18 February 1991, the applicant served notice on the tenant requiring her to vacate the premises.
13. On 19 March 1991, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 12 April 1991.
14. On 2 May 1991, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
15. Between 12 April 1991 and 27 April 1995 the bailiff made twenty attempts to recover possession.
16. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
17. On 17 January 1996 the applicant was granted police assistance in evicting her tenant; on that day, however, the latter claimed to be ill and no officially appointed doctor was available to check her allegations. The bailiff arranged to make his next visit to the premises on 6 February 1996. However, on that occasion the applicant was not granted police assistance and the tenant refused to vacate the premises, as she was about to have a council flat allocated to her. On 23 April 1996, the tenant produced a document from the council stating that she would have the flat from 30 April 1996.
18. On 17 May 1996, the tenant vacated the premises.
19. The relevant domestic law is described in the judgment Immobiliare Saffi v. Italy [GC], no. 22774/93, 28.7.99, §§ 18-35, ECHR 1999-V, to be published.


ITEMID: 001-72528
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: RIPPE v. GERMANY
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Utz Rippe, is a German national who lives in Petershagen in Germany. He was represented before the Court by Mr H. Bahr, a lawyer practising in Celle.
The applicant was the managing partner of the Rippe Automatenbetriebe GmbH (henceforward referred to as “R-Company”). In 1998 the R-Company rented commercial premises from another company (“the lessor”), in order to operate its business. In October 2000 the R-Company became insolvent. By agreement of January 2001 the applicant acceded to the lease as from March 2001. As from February 2001 the R-Company got into arrear with three months’ rent. By letter of 9 May 2001 the lessor sent the R-Company a request for payment. By letter to both the R-Company and the applicant of 18 May 2001 the lessor terminated the lease without notice (fristlose Kündigung). By 23 May 2001 the applicant had paid the arrears of rent.
The lessor lodged an action for eviction with the Bückeburg Regional Court (Landgericht), alleging that he had sent the applicant two requests for payment on 3 April and 5 April 2001. As the applicant contested this, the Regional Court decided to take evidence by hearing the lessor’s secretary as a witness.
By judgment of 4 February 2002 the Regional Court, following a public hearing, ordered the applicant’s eviction from the premises. That court found that the lessor had proved that he had posted the letters to the applicant. It did not attach credence to the applicant’s claim that he had not received these letters.
By letter of 7 May 2002 the applicant, who was represented by counsel, submitted his reasons for appeal, claiming that the Regional Court’s assessment of the evidence was contrary to the case-law of the Federal Court of Justice. According to the applicant, the mere fact that the witness had posted the letters to the applicant did not suffice to prove that he had actually received them. In this respect, he submitted several possibilities as to how the letters could have been lost before reaching their destination.
By letter of 16 May 2002 the Celle Court of Appeal (Oberlandesgericht) informed the applicant of its intention to reject the appeal without a hearing pursuant to section 522 § 2 of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below). It further invited the applicant to submit written comments within two weeks.
The Court of Appeal, following a preliminary assessment, found that the applicant’s appeal lacked prospect of success. It considered that, according to the terms of the tenancy agreement, it would have been sufficient to inform the applicant about the arrear payments. The applicant had been duly informed by letter of 9 May 2001. Even though this letter had not been directed to the applicant, but to the R-Company, the applicant had undisputedly received it.
In any event, the appeal lacked prospect of success as the Regional Court’s assessment of the facts had neither been contrary to the law nor to the case-law of the Federal Court of Justice. The applicant had not submitted that the Regional Court had wrongly established the facts.
By letter of 4 June 2002 the applicant requested the Court of Appeal to abstain from applying section 522 § 2 of the Code of Civil Procedure and to hold an oral hearing on his appeal. He stated that section 522 § 2 should only be applied if an appeal was manifestly ill-founded. Referring to the Court’s case-law, the applicant further pointed out that Article 6 § 1 of the Convention granted a right to an oral hearing in appeal proceedings, which could only be dispensed with if this was justified by the special features of the proceedings involved. The Court of Appeal had based its letter on different facts than the Regional Court. Under these circumstances, it was necessary to hold a fresh oral hearing. The applicant further denied having gained any knowledge of the content of the letter of 9 May 2001, as he had transferred this letter unopened to the R-Company’s administrator in insolvency. He further maintained that the Regional Court’s assessment of the evidence had not been in accordance with the law.
On 6 June 2002 the Court of Appeal, by unanimous decision, rejected the applicant’s appeal pursuant to section 522 § 2 of the Code of Civil Procedure. The Court of Appeal stated that the appeal had no prospect of success, that the matter at issue was not of fundamental importance, and that is was not necessary to allow the appeal in order to safeguard a consistent application of the law. It found, first, that section 522 § 2 did not require that an appeal was manifestly ill-founded. Notwithstanding, the applicant’s appeal was manifestly ill-founded. The Court of Appeal noted that the applicant had conceded having received the letter of 9 May 2001. By sending this letter, the lessor, who did not know about the R-Company’s insolvency, had taken the necessary steps to inform the applicant about the arrears of rent. It did not matter whether the applicant had gained knowledge of the content of that letter, as he had been in a position to do so.
Referring to the reasons set out in its letter of 16 May 2002, the Court of Appeal confirmed that the Regional Court’s assessment of the evidence had not been contrary to the law.
With respect to Article 6 of the Convention, the Court of Appeal found as follows:
“This provision [section 522 § 2 of the Code of Civil Procedure] is closely linked to the examination of the admissibility of the appeal by the court, as can be seen in the context with section 522 § 1. Accordingly, the applicant’s references to Article 6 of the Convention are not suited to compel the Senate to hold an oral hearing irrespectively of the appeal’s prospect of success. Within the ambit of Article 6, the necessity of an oral hearing in appeal proceedings does not arise, if only the admissibility of the appeal is at issue, if the applicant’s grounds of appeal are irrelevant for the decision or if the appeal can adequately be dealt with on the basis of the content of the case-file (see Zöller/Gummer, Commentary to the Code of Civil Procedure, 23rd ed., § 522, marginal note 36). It follows that Article 6 of the Convention – contrary to the defendant’s point of view – does not require a public hearing in every case in which an appeal is not manifestly ill-founded, but leaves sufficient room for the application of section 522 § 2 of the Code of Civil Procedure. It does not require a specific degree of lack of prospect of success.”
On 15 July 2002 the applicant lodged a constitutional complaint alleging a violation of his rights under the German Constitution and under Article 6 of the Convention. He further requested the Federal Constitutional Court to suspend his eviction from the business premises by interim measure.
By decision of 5 August 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s complaint for adjudication for lack of prospect of success. That court found that the Court of Appeal’s interpretation of the law did not violate the applicant’s constitutional rights. In particular, it neither violated the applicant’s right that his case be adjudicated by the competent judge (Recht auf den gesetzlichen Richter), nor was the limitation of access to the appeal proceedings disproportionate.
This decision was served on the applicant’s counsel on 12 August 2002.
According to the former Code of Civil Procedure, appeal proceedings against a decision given by a court of first instance allowed a complete review of both facts and law.
On 1 January 2002, reform legislation entered into force (Zivilprozess-Reformgesetz), which was aimed at facilitating and thus expediting civil proceedings, inter alia by strengthening the position of the first instance courts and by unburdening second instance proceedings. Following this legislation, appeal proceedings are primarily devised as a means of controlling and rectifying errors made by the courts of first instance.
The relevant provisions as in force since January 2002 read as follows:
Section 513
Grounds of appeal
“(1) An appeal can only be lodged on the ground that the decision is based on a violation of the law...or that the facts which are relevant according to section 529 justify a different decision.
...”
Section 522
Examination of admissibility, decision on rejection
“(1) The Court of Appeal has to establish on its own motion whether the appeal is admissible (statthaft) and whether it has been lodged in accordance with the formalities and time-limits as prescribed by law. If any of these prerequisites is lacking, the appeal has to be rejected as being inadmissible. The decision is taken by court-order which is subject to an appeal on points of law.
(2) The Court of Appeal promptly rejects the appeal by unanimous decision if it is convinced that
1. the appeal does not have prospect of success,
2. the legal matter is not of fundamental importance and
3. the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the court of appeal.
The court of appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and has to give the appellant the opportunity to submit observations within a set time-limit. The decision pursuant to sentence one has to be reasoned, if the reasons for the rejection are not included in the letter of information pursuant to sentence two.
(3) The decision given pursuant to paragraph two, sentence one is not subject to an appeal. “
Section 529
Scope of examination by the Court of Appeal
“(1) The Court of Appeal has to base its hearing and decision on:
1. the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts which warrant a fresh establishment;
2. new facts, as long as it is admissible to consider these.
...”
In case the Court of Appeal rejects an appeal by judgment following an oral hearing, the appellant may, subject to certain provisions, file a request to be granted leave to appeal on points of law to the Federal Court of Justice.


ITEMID: 001-92286
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KOCHKADAYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: The applicant, Mr Dmitriy Kochkadayev, is a Ukrainian national who was born in 1947 and lives in Torzym, Poland. He was represented before the Court by Mr A. Schwierzy, a lawyer practising in Sulecin, Poland. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1968-1981 the applicant worked in the town of Ulyanovsk in Russia. In 1981 the applicant moved to the town of Uman in Ukraine, where he worked until his departure to Poland in 1991. In 1995 the applicant received a permanent residence permit in Poland.
In December 1997, according to the applicant, he reached the age of retirement, as he had worked in hazardous conditions and was, therefore, entitled to an early pension.
In a letter of 6 October 1999 the Pension Fund of Ukraine informed the applicant that, in accordance with the Law of Ukraine on Pensions, pensions should not be granted to citizens who had left for permanent residence abroad.
On 19 November 2004 the applicant again requested the Pension Fund of Ukraine to grant him a pension but received a refusal since he had not submitted a Ukrainian passport.
At the end of 2004 – beginning of 2005 a certain D. lodged a complaint before the Uman District Court on behalf of the applicant challenging the refusal of the Pension Fund to pay him pension. On 7 April 2005 the court found that the Fund's refusal was based on the legal provisions in force and that the applicant was not entitled to pension payments since he had not been residing in Ukraine since 1991.
Section 12 of the Law of Ukraine on Pensions provides that an old-age pension is granted to men from the age of 60 and with work experience of at least 25 years.
Section 13 of the Law of Ukraine on Pensions provides for situations in which a man can receive an early retirement pension at the age of 50 or 55.
Other relevant domestic law is summarised in the Myroshnychenko v. Ukraine decision (no. 10205/04, 3 April 2007).


ITEMID: 001-23177
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: CARRIERO v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants Eleonora Carriero and Vittoria Carriero are Italian nationals, born in 1932 and in 1940 respectively and living in Merine (Lecce). They are represented before the Court by Mr Marzo, a lawyer practising in Lecce. The respondent Government were represented by Mr F.Crisafulli, co-agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants own two plots of land in the municipality of Sannicola, recorded on the cadastral register as folio no. 1, parcel no. 62 and no. 56. The former plot has been classified under the Town Planning Act of 20 March 1974 as a protected landscape (“vincolo paesistico monumentale”) and consequently cannot be used for building. The second plot however has been classified as land that can be used for building tourist residences (“turistico residenziale”).
On 11 December 1978, the applicants submitted a plan for the division of the plots (“piano di lottizzazione”) to the Sannicola City Council.
The City Council did not reply.
On 26 April 1979 the applicants sent the City Council a warning letter (“diffida”) by which they asked for a reply.
On 13 June 1979 the applicants applied to the Puglia Regional Administrative Court (“T.A.R.”), maintaining that the City Council had the duty to reply to their request of 11 December 1978.
By judgment of 15 April 1985, the Puglia Regional Administrative Court ordered the Sannicola City Council to reply to the applicants’ request.
In the meantime, the Puglia Regional Council had adopted Law No. 56 of 31 May 1980 which regulated the use of lands.
On 3 August 1985 the Sannicola City Council rejected the applicants’ plan for the division of the plots on the ground that it was not consistent with the town-planning legislation and, in particular, with the Town Planning Order of 1974 and with Law No. 56 of 31 May 1980.
The applicants did not appeal.
On 25 November 1985 the applicants applied to the Lecce District Court for compensation for damages as a result of the inertia by the Sannicola City Council in replying to their request. In particular, they alleged that if the City Council had replied before the entry into force of Law No. 56 of 31 May 1980, their request would have been granted. Furthermore, they requested the court to state that the plan they had submitted to the City Council was consistent with planning legislation in force at that time.
By judgment of 4 July 1991, the Lecce District Court declared the applicants’ claim inadmissible. The court first observed that only the regional administrative courts were competent to state whether a plan concerning the division of land was consistent with the planning legislation; furthermore, it refused compensation stating that the applicants had not the right but a simple expectation to have their plan approved.
On 4 may 1995, the applicants appealed against the judgment to the Lecce Court of Appeal.
By a judgment of 26 January 1995, the Lecce Court Appeal rejected the appeal and upheld the impugned judgment.
The applicants appealed on points of law.
By judgment of 30 January 1997, filed with the registry on 2 June 1997, the Court of Cassation rejected the appeal.


ITEMID: 001-23032
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: WALLER and VALE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicants, Mr Darren Waller and Mr Brian Vale, are British nationals, born in 1964 and 1949, respectively. Both are currently in prison. They are represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool.
Mr Waller was convicted of attempted murder and sentenced to a discretionary life sentence on 24 September 1996. His tariff was fixed at eight years by the sentencing judge on the same day. He was refused leave to appeal against conviction on 10 April 1997 by a single judge of the Court of Appeal.
Mr Vale was convicted of manslaughter and on 8 September 1994 sentenced to a discretionary life sentence. His tariff was fixed at ten years and, on 3 October 1995, after he was granted leave to appeal against sentence, it was reduced to eight years by the Court of Appeal.
In response to a query by Mr Vale’s representatives as to the means by which he could apply to have his tariff reduced, the Prison Service responded by letter dated 17 February 1999 confirming that the Secretary of State could not interfere with a tariff fixed by a court.
The Court refers to the description of the domestic law and practice in its judgment in the case of Stafford v. the United Kingdom ([GC], no. 46295/99, judgment of 28 May 2002, ECHR 2002-IV).
English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of 18 known as detention during Her Majesty’s Pleasure (section 53(1) of the Children and Young Persons Act 1933); in respect of offenders between the age of 18 and 20 years, custody for life (section 8(1) of the Criminal Justice Act 1982), and in respect of offenders aged 21 and over, life imprisonment (section 1(1) of the Murder (Abolition of Death Penalty) Act 1967).
Mandatory life sentences are fixed by law, in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (e.g. manslaughter, rape or robbery). The principles underlying the imposition of a discretionary life sentence are:
(i) that the offence is grave, and
(ii) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when the danger will subside.
Discretionary life sentences are indeterminate in order that “the prisoner’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large” (R v. Wilkinson [1983] 5 Cr.App.Rep. 105, p. 108).
Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s Pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991.
Under the relevant provisions of the Criminal Justice Act 1967, the regime applying to the release of discretionary and mandatory life prisoners was the same. Section 61(1) of the 1967 Act provided inter alia that:
“The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England and the trial judge if available.”
For both categories of prisoner, the Secretary of State fixed the tariff element of the sentence, after consulting the judiciary.
The 1991 Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A).
Pursuant to section 34 of the 1991 Act, the sentencing court was to specify the penal or tariff element of the sentence. After the tariff expired, the prisoner could require the Secretary of State to refer his case to the Parole Board which had the power to order his release if it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner was entitled to an oral hearing, to disclosure of all evidence before the Parole Board and to legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who have written reports about him.
The regime applicable to mandatory life prisoners and prisoners detained during Her Majesty’s Pleasure was, however, preserved within section 35 of the 1991 Act. Section 35 of the 1991 Act provided insofar as relevant:
“(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”
On 10 November 1997 the Secretary of State made the following parliamentary statement (Hansard (House of Commons Debates) cols. 420-421):
“So far as the procedures for setting and reviewing tariffs of [mandatory life prisoners] are concerned, I am continuing the practice of my predecessor, as described in his answers of 27 July 1993, ... In particular, before setting the tariff, I am continuing to take the advice of the trial judge and the Lord Chief Justice, informing the prisoner of the substance of that advice and inviting representations about it, and giving reasons for any departure on my part from the judicial review.
With regard to the discretion to alter the tariff, I reiterate that the view which I take ... at the beginning of a mandatory life sentence of the period necessary to satisfy the requirements of retribution and deterrence, is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it or by increasing it where I, or a successor in my office, conclude that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.
The procedure for considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of State is minded to increase the tariff, and to be given reasons for any subsequent decision to increase it.
So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence ... Prisoners will continue to be given the opportunity to make representations and to have access to the material before me.
I intend to apply these policies in respect of all tariffs for adult murderers, whether or not they were originally set before 27 July 1993 and whether or not they were originally fixed by me personally, or a Minister acting on my behalf, or by or on behalf of a previous holder of my office.”
On 9 July 1998 the Secretary of State made the following parliamentary statement (Hansard (House of Commons Debates) cols. 588-589):
“Those convicted of murder [mandatory prisoners] are now fully informed about the tariff-setting process and may make representations at any time about the length of their tariff. In addition, they may at any time make representations for their tariff to be reduced to take account of exceptional circumstances, including exceptional progress in prison. ...”