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JUDGMENT
STRASBOURG
6 October 2016
This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.
PROCEDURE
1. The case originated in an application (no. 68909/13) against the
United Kingdom of Great Britain and Northern Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (the Convention) by a British national,
Mr Daniel Faulkner (the applicant), on 23 October 2013.
2. The applicant, who had been granted legal aid, was represented by
Chivers Solicitors, a firm of solicitors based in Bingley. The United
Kingdom Government (the Government) were represented by their Agent,
Ms M. Macmillan, of the Foreign and Commonwealth Office.
3. The applicant alleged, in particular, that the delay from March 2008
until January 2009 in holding a Parole Board hearing to review the
lawfulness of his detention rendered his detention during that period
arbitrary and thus unlawful under Article 5 1 (a) of the Convention.
4. On 26 May 2015 the complaint under Article 5 1 was
communicated to the Government and the remainder of the application was
declared inadmissible pursuant to Rule 54 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1982 and is detained in HM Prison
Dovegate, Uttoxeter.
10. The case was referred to the Parole Board on 21 December 2007. On
6 May 2008 the applicant and the Parole Board were sent relevant reports as
required by the applicable rules. On 16 May 2008 the Parole Board gave
case-management directions requiring additional reports. On 8 October
2008 the Parole Board received the further reports requested. The hearing
took place on 8 January 2009. On 23 January 2009 the Parole Board
directed the applicants release. He was released from prison four days later.
B. The domestic proceedings
11. Meanwhile, in autumn 2008, the applicant commenced judicial
review proceedings against the Secretary of State and the Parole Board
seeking damages for the delay in holding the hearing. He relied on Article 5
continued detention without access to courses, and not for loss of liberty.
Lord Reed noted that the delay in the applicants case appeared to have been
the result of errors by administrative staff, of a kind which occur from time
to time in any system which is vulnerable to human error. While it was
extremely unfortunate that the errors had occurred and had resulted in the
prolongation of the applicants detention, they were not of such a character,
and the delay was not of such a degree, as to warrant the conclusion that
there had been a breach of Article 5 1.
18. On the matter of damages for the violation of Article 5 4 of the
Convention, Lord Reed reviewed relevant case-law of this Court where a
violation of Article 5 1, 3 or 4 had been found, focusing in particular on
cases concerning a delay in holding a hearing intended to address the
question whether a convicted prisoner should be released. He considered
that no clear guidance could be derived from the cases since none concerned
awards for loss of liberty resulting from a violation of the speedy decision
guarantee in Article 5 4. While, he said, an appellate court would not
interfere with an award of damages simply because it would have awarded a
different figure if it had tried the case at first instance, in the applicants
appeal the court was being invited to give guidance as to the appropriate
level of awards in cases of this character. For that purpose, the court had
undertaken a fuller analysis of the case-law of this Court than the Court of
Appeal. Lord Reed concluded:
87. ... In the light of that analysis, and applying the general approach which I have
described ..., it appears to me that an award in the region of 6,500 would adequately
compensate Mr Faulkner for his delayed release, bearing in mind the conditional and
precarious nature of the liberty foregone. That amount falls well short of the award of
10,000 made by the Court of Appeal. In the circumstances, it is in my view
appropriate for this court to allow the Boards appeal and to reduce the award
accordingly.
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 1 OF THE CONVENTION
21. In the applicants submission, his detention from March 2008, for a
period of ten months pending his delayed Parole Board review in January
2009, had not merely resulted in a violation of Article 5 4 but was also
arbitrary and in breach of Article 5 1 of the Convention, which reads as
follows:
1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a competent court.
A. Admissibility
23. The Government noted that the applicant had benefited from a
declaration that a breach of Article 5 4 had occurred and had been
awarded damages. Further, his complaint under Article 5 1 had been heard
and dismissed by the Supreme Court, such that respect for human rights did
not require an examination of the application on its merits. They therefore
argued that he had suffered no significant disadvantage connected to his
Article 5 1 rights and invited the Court to declare the complaint
inadmissible under Article 35 3 (b) of the Convention.
24. The applicant did not comment on the Governments admissibility
objection.
26. The admissibility criterion in Article 35 3 (b) reflects the view that
a violation of a right, however real from a purely legal point of view, should
attain a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in the nature
of things, relative and depends on all the circumstances of the case. The
severity of a violation should be assessed, taking account of both the
applicants subjective perceptions and what is objectively at stake in a
particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010;
and Van Velden v. the Netherlands, no. 30666/08, 36, 19 July 2011). An
alleged violation of the Convention may concern important questions of
principle and thus cause a significant disadvantage without affecting an
applicants pecuniary interest (Korolev, cited above; and M.N. and Others
v. San Marino, no. 28005/12, 37, 7 July 2015). It may also be that, even in
the absence of a significant disadvantage, a question of principle raised by
an application is of a general character affecting the observance of the
Convention, such that, under the terms of the second element in Article 35
3 (b), respect for human rights defined in the Convention ... requires an
examination of the application on its merits.
27. In calling on the Court to reject the application as inadmissible under
Article 35 3 (b), the Government argued that because the national courts
had given a ruling finding a violation of Article 5 4 on account of the
delay in holding a Parole Board hearing and awarding damages, the
applicant had suffered no significant disadvantage in connection with his
Article 5 1 right. The Court is not, however, satisfied that the conditions
for inadmissibility stated in Article 35 3 (b) are satisfied. The nature of the
guarantees afforded by Articles 5 1 and 5 4 is significantly different, the
latter being concerned exclusively with safeguards subsequent to
deprivation of liberty and the former encapsulating the more comprehensive
right not to be detained in an arbitrary fashion. The applicants submission
is that the delay in his case was such as to give rise not merely to a denial of
access to a review of the lawfulness of his continuing detention (contrary to
Article 5 4) but also to a period of unjustified deprivation of liberty
(contrary to Article 5 1). While the applicant received financial
compensation of GBP 6,500 as redress for the disadvantage resulting
from his delayed release (see paragraphs 17-18 above), the applicants
29. In the applicants submission, his was not a case where detention
was always justified by the original judicial decision imposing the sentence.
That decision permitted his detention so long as it was justified on the basis
of the risk posed. After March 2008, his detention was not justified on the
basis of risk because he had reduced his risk. There was a stark difference
between people deemed no longer to pose a risk to the public (in respect of
whom the causal connection between sentence and detention had been
broken) and those deemed to pose a continuing risk to the public. A finding
that his Article 5 1 rights had been violated would not imply that persons
who continued to pose a risk to the public should be released. The applicant
argued that the facts of his case were so radically distinct from those in
James, Wells and Lee that it was unnecessary for the Court to consider
whether that case was correctly decided. The Governments attempts to
re-argue James, Wells and Lee (see paragraph 33 below) were not only
misconceived but irrelevant to the facts of his case.
30. The applicant relied on the cases of Erkalo v. the Netherlands,
2 September 1998, Reports of Judgments and Decisions 1998-VI,
Schnbrod v. Germany, no. 48038/06, 24 November 2011, and H.W. v.
Germany, no. 17167/11, 19 September 2013, in support of his case. He
argued that they demonstrated the importance of administrative review in
the Article 5 framework. It was only by reviewing the substantive merits of
the continuing detention that the State could demonstrate compliance with
Article 5. Where there had been a failure to comply with procedural
safeguards under domestic law, there would be a breach of Article 5 1
(citing Nakach v. the Netherlands, no. 5379/02, 30 June 2005; and Schenkel
v. the Netherlands, no. 62015/00, 27 October 2005). The Governments
attempt to distinguish the cases was absurd and would lead to a situation in
which a prisoner could be lawfully detained indefinitely without any Parole
Board review. This could not possibly be correct. The applicant accepted
that the mere fact of a breach of Article 5 4 did not necessarily cause
detention to be unlawful as there might be an underlying justification for
detention: the prisoner might pose a risk. However, where there was no such
justification, unlawful delay was no excuse for a failure to release.
31. Further, the Governments argument that the applicant was being
progressed through the system (see paragraph 35 below) was untenable. The
delay was entirely the fault of the authorities and occurred because they had
failed to ensure that systems were in place which would have enabled timely
determination of whether there was an ongoing justification for detention.
The Government had not explained what concrete steps were taken during
the ten-month period and the Court of Appeal had clearly found that there
was no material change in the applicants risk level during the ten months.
32. In the applicants view, the Governments interpretation of
arbitrariness was untenably narrow and inconsistent with the Courts
case-law. A lengthy delay, as in this case, did not reflect the strict standards
set out in the case-law. Further, arbitrariness involved consideration of
whether, inter alia, the order to detain and execution of detention genuinely
conformed to the purpose of the restrictions in Article 5 1. In the
applicants case, there was no basis in law for his detention during the
ten-month period.
(b) The Government
33. The Government accepted that there had been a breach of Article 5
4 of the Convention in the applicants case but did not agree that this had
resulted in a violation of Article 5 1. While the Court in James, Wells
and Lee had considered that a failure to provide rehabilitative courses gave
rise to an issue under Article 5 1, it was significant that the Supreme Court
in Kaiyam and Others had preferred to view the duty to provide access to
courses as an ancillary duty of a more procedural nature under Article 5
rather than a matter going to lawfulness under Article 5 1 (a) (see
paragraph 20 above). The concerns expressed by the Supreme Court in
Kaiyam concerning the application of Article 5 1 in that case applied
equally in a case such as this based on delay: absent bad faith, delay on the
part of the judicial body responsible for determining whether to release a
prisoner did not render detention arbitrary.
34. The Government distinguished the cases on which the applicant
relied (see paragraph 30 above) on the ground that they were cases in which
the Court was asked post facto to validate a period of detention which had
not, at the time of its commencement, been judicially determined or
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42. Although he relied on James, Wells and Lee before the Supreme
Court (see paragraph 15 above), the applicant argued before this Court that
the judgment in that case was not relevant to his complaint (see
paragraph 29 above). Instead, he relied on case-law of this Court which he
contended showed that procedural delays of the nature and length of that
which occurred in his case breached Article 5 1 of the Convention (see
paragraph 30 above). However, for the Court, the facts of the cases cited
differ from the facts of the applicants case in an important respect. In the
cases relied on by the applicant, the period of detention at issue was not
based on any judicial decision, the order authorising detention having
expired, and there was a lack of adequate safeguards to ensure that the
applicants release from detention would not be unreasonably delayed (see
Erkalo, 57; Schnbrod, 107-108 and H.W., 83 and 89). By contrast,
in the present case the applicants detention remained at all times formally
authorised by the sentence of custody for life imposed on him by the Crown
Court in 2001 (see paragraph 6 above). He could not be released unless and
until there was a decision of the Parole Board that he had shown the
required reduction in risk and was safe for release. The Court of Appeals
finding in December 2010, on a balance of probabilities, that had a Parole
Board hearing taken place in March 2008 he would have been released
cannot be equated to a formal Parole Board finding in March 2008 that he
was safe for release. The existence of a valid court order authorising
detention constituted an important safeguard against arbitrariness in the
applicants case.
43. The applicant further relied on Nakach and Schenkel, both cited
above, to argue that where there had been a failure to comply with
procedural safeguards under domestic law, there would be a breach of
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Renata Degener
Deputy Registrar