European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

CASE OF HILL v. THE UNITED KINGDOM

 

(Application no. 22853/09)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

 

7 April 2015

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Hill v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Nona Tsotsoria, President,
          Paul Mahoney,
          Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 22853/09) 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 Lee Anthony Hill (“the applicant”), on 8 April 2009.

2.  The applicant was represented by Scott-Moncrieff & Associates Ltd., a firm of solicitors based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell, of the Foreign and Commonwealth Office.

3.  On 6 February 2014 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1967 and lives in Arundel.

5.  In 2006 he was convicted of assault occasioning grievous bodily harm. He had a previous conviction for a similar offence against the same victim. A pre-sentencing report identified the Enhanced Thinking Skills (“ETS”) course followed by the Controlling Anger and Learning to Manage It (“CALM”) course as potentially appropriate courses for the applicant to complete during a sentence of imprisonment and explained that attendance at these courses would take around two years. On 23 November 2006 an indeterminate sentence for public protection (“IPP sentence”) was imposed. A minimum term (“tariff”) of fourteen months and twelve days was fixed.

6.  The applicant was detained in HMP Lewes. On 20 March 2007 a post-sentence report by his probation officers confirmed that the ETS and CALM courses were, in principle, appropriate and that completion would take around two years. At a sentence planning board on 31 October 2007, following completion of an assessment using the Offender Assessment System (“OASys”), his targets were identified as: positive use of his time in custody; improved awareness of appropriate behaviour (thinking skills); and completion of a course on Victim Awareness, the latter of which, it was noted, had already been completed.

7.  A progress report dated 20 December 2007 noted:

“Mr Hall has taken the only opportunities offered to him to address his offending and appears to have modified his attitude, which was a big step for him.”

8.  On 4 February 2008 the applicant’s tariff expired.

9.  On 15 February 2008 a first Parole Board Review was held. On 21 February 2008 the Parole Board informed the applicant of its decision not to direct his release or recommend his transfer to open conditions. The panel considered that the applicant still posed a high risk to his victim, particularly as the victim had been also been detained in HMP Lewes and the applicant had received an adjudication for assaulting him. In order to address this risk, the applicant was required to complete the ETS course and to be assessed for the CALM course, in closed conditions. The panel continued:

“Your supervisors considered that you should be assessed for ETS and Anger Management, but this has not been possible at HMP Lewes, where you are considered to be a polite and respectful Enhanced Prisoner.”

10.  The Parole Board referred to the applicant’s submission that he would control himself and avoid the victim in future and that he was prepared to respect non-contact and exclusion zone conditions to secure his release. It concluded:

“The Panel accepts without reservation, that your high level of risk relates solely to your involvement with [the victim], but this is a risk which cannot be ignored, despite your determination to avoid him. Any such involvement is a real concern and cannot be ignored. It is the view of the Panel, having taken into account the varying views of your supervisors, that prior to your release you should have the opportunity to carry out all outstanding offending behavior work, namely ETS and to be assessed for CALM, and that the appropriate place for this to be done, is in Closed Conditions.”

11.  On 5 March 2008 the Secretary of State approved the Parole Board’s recommendation and set the review period at eighteen months to complete outstanding offender behaviour work, with a hearing to take place in August 2009.

12.  On 16 April 2008 the applicant was transferred to HMP Erlestoke. His targets were reviewed with his offender supervisor and on 25 April 2008, after a review of an initially negative decision, he was referred for assessments for the ETS and CALM courses and the Healthy Relationships Programme (“HRP”).

13.  In May 2008, the applicant was deemed suitable to progress to the second stage of the assessment for the ETS course.

14.  In the applicant’s Sentence Planning and Review Report dated 30 June 2008, prepared by his offender manager, it was recorded that he was to be assessed for and, if suitable, complete the ETS and CALM courses and the HRP. The report added as regards the HRP:

“I am also of the opinion that consideration needs to be given to completing this work in the community as a condition of his licence because the waiting list is extremely long.”

15.  At a sentence planning and review meeting on 14 August 2008, the applicant’s sentence targets recorded that he should be assessed for and complete the ETS and CALM courses and the HRP programme. It was noted that he required extra psychological assessment as he appeared to be afraid of participating in group activities, which might hinder his eventual participation in the courses recommended to him.

16.  A report of an interview with his offender supervisor dated 20 January 2009 notes:

“When the question of his current sentence plan targets was raised, he stated that he would not do any of the courses as he hates classrooms and he will not be forced into doing them. When it was explained that this attitude would make it extremely difficult for him to make any progress in his sentence and through the prison system, he stated that he did not care and would stay here ‘for thirty years’ ... Mr Hill did not want to discuss any of his specific sentence plan targets with me and this is clearly an area that needs to be addressed in order for him to progress.”

17.  In his Parole Assessment Report of 27 January 2009, the applicant’s offender manager stated that she could not support the applicant’s release because at that stage he had not undertaken any work to address his behaviour. She noted his resistance to offending programmes and reported that it was “absolutely imperative” that arrangements be made for him to be psychologically assessed, adding:

“Mr Hill faces the potential of being left serving an IPP sentence with no means of working towards his release.”

18.  She further noted that she had made enquiries at the prison as to whether the applicant might undergo psychological assessment but that the chances of this occurring were seen as slight. She stated that if this was not available at his current institution, the applicant would need to be moved to a facility where it could be undertaken.

19.  In February 2009 the applicant’s case was referred to the Parole Board.

20.  A Sentence Planning and Review Report dated 2 February 2009 recorded the applicant’s refusal to engage with his sentence plan targets to reduce his risk. It recommended that the ETS, CALM and HRP courses be undertaken in closed conditions and that counselling be provided.

21.  On 5 February 2009 the applicant confirmed that he was prepared to do the ETS course in a one-to-one basis.

22.  On 28 April 2009 he met with the ETS facilitators and on 29 April was notified that he had been identified as a potential participant of the ETS course scheduled to begin on 13 May 2009.

23.  The applicant was duly enrolled on the May 2009 ETS course. He completed the course in June 2009. A post-programme review took place on 11 August 2009.

24.  The applicant was subsequently informed by his probation officer that there was a two-year wait for access to the CALM course.

25.  On an unknown date the Parole Board hearing scheduled for August 2009 was deferred to November 2009 in order to allow for the completion of the post-ETS course report. It was subsequently deferred again until 9 February 2010.

26.  Meanwhile, at some point in 2009 or 2010, the applicant was assessed for the HRP and was found to be unsuitable.

27.  On 29 January 2010 the applicant’s solicitors informed the Parole Board that they had commissioned an independent psychologist’s report on the applicant and that it might not be completed by the time of the scheduled hearing. As a result, on 1 February 2010 the Parole Board Panel Chair issued directions deferring the hearing and imposing deadlines for the provision of the psychiatric report (9 March) and any report in response by the Secretary of State (8 June). The target month for the hearing was September 2010.

28.  The independent psychology report was completed on 7 February 2010 and filed with the Parole Board on 9 March 2010. The report supported the applicant’s release on licence into the community. It explained that the applicant had tried to complete his treatment goals but that his fear of group settings combined with his low IQ had made this very difficult. It further stated:

“5.1 I strongly recommend irrespective of the outcome of any future Parole Board hearing that Mr Hill receives one-to-one counselling as a matter of urgency...

5.3 There has been much debate regarding Mr Hill’s need for further treatment and indeed his ability to benefit from such treatment. In my opinion a prerequisite for deciding the issue is that Mr Hill undergo further cognitive and/or psychoneurological assessment.”

29.  In an addendum to the report dated 14 May 2010, it was noted that the applicant was not capable of benefitting from group work but was fully capable of one-to-one coursework.

30.  The prison was not notified that a report was required until 20 July 2010. Because of other reporting commitments, it informed the parties that it would be unable to deliver the necessary report before May 2011.

31.  The Parole Board hearing was subsequently further deferred until 13 January 2011.

32.  In an addendum to the Sentence Planning and Review Report, the applicant’s offender supervisor explained:

“There have been problems getting Mr Hill assessed for the CALM course, some of which relate to his reluctance to participate and others due to issues relating to availability of staff.”

33.  On 10 January 2011 the applicant was informed that his Parole Board hearing had been cancelled because the applicant’s offender supervisor was unable to attend and that the earliest possible date for the hearing would be March 2011.

34.  The deferred Parole Board hearing took place on 19 April 2011. By letter dated 28 April 2011, the Parole Board noted that the applicant had not cooperated with a prison transfer to allow him to be assessed for the CALM course and that he appeared to prioritise his work over addressing his areas of risk. The Parole Board further noted that the applicant was still, five years into his sentence, providing new and important background to the motivations and triggers for his violence. It said that this had limited the assessment of his risk factors.

35.  The applicant subsequently sought judicial review of the Parole Board’s decision not to recommend his transfer to open conditions. On 21 January 2012 the Administrative Court granted the judicial review application on the basis that the panel had failed to carry out the correct balancing exercise when considering whether to accede to the applicant’s request for a transfer to open conditions. The Parole Board was instructed to reconsider this aspect of the applicant’s case.

36.  The applicant subsequently undertook the CALM course and completed it in October 2011.

37.  The Parole Board held an oral hearing on 13 April 2012. By letter dated 4 May 2012, it directed the applicant’s release. He was released on 15 May 2012.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

38.  The relevant domestic law and practice is set out in the Court’s judgments in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012; and Betteridge v. the United Kingdom, no. 1497/10, 29 January 2013.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

39.  The applicant complained under Article 5 § 1 of the Convention about delay in the authorities allowing him access to relevant rehabilitative courses. Article 5 § 1 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 ...”

40.  The Government contested the argument that there had been a violation of Article 5 § 1 in the case.

A.  Admissibility

41.  The Government argued that the applicant had failed to exhaust domestic remedies since he had not commenced judicial review proceedings alleging a breach of Article 5 § 1 of the Convention.  In the alternative, they invited the Court to declare the applicant’s complaint inadmissible as manifestly ill-founded. Citing Hall v. the United Kingdom (dec.), no. 24712/12, § 32, 12 November 2013, they argued that the applicant had been given access to numerous courses and assessments both pre- and post-tariff and that his post-tariff detention could therefore not be considered “arbitrary”.

42.  The Court is satisfied that at the point at which the applicant lodged his application, the possibility of judicial review proceedings offered no prospect of success as regards systemic delay in access to rehabilitative courses (see Black v. the United Kingdom (dec.), no. 23543/11, § 52, 1 July 2014). The Government’s objection as to non-exhaustion of domestic remedies is accordingly dismissed.

43.  The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

44.  The applicant argued that the fact that some offending-behaviour work was provided to him did not mean that he was not a victim of a violation of Article 5 § 1. The question was whether there was an unreasonable delay in the provision of necessary risk-reduction work. He was of the view that egregious delays occurred in his case. The only intervention provided prior to tariff expiry was a Victim Awareness course, which the applicant claimed could not be described as core risk-reduction work since it did not address his risk of violent offending. Subsequently, despite several recommendations for psychological assessments, no such assessment was provided to him. No disability screening was ever offered and there was no suggestion that he be given access to courses adapted to reflect his obvious learning difficulties.

45.  The applicant denied that he had been resistant to completing courses. The evidence before the Court suggested that he had taken the only opportunities offered to him to address his offending. In any event, any resistance was the result of the Government’s failure to provide courses suitably adapted to reflect his learning difficulties. The Government were under an obligation to make reasonable adjustments to enable disabled prisoners to complete coursework.

46.  As a consequence of the authorities’ failures, the applicant claimed that he was not provided with any meaningful risk-reduction work following his sentence in November 2006 until 13 May 2009 when he agreed to complete the ETS. Following completion of the ETS until his release in May 2012, there was also reprehensible delay. These failures were significant since it was necessary for him to complete offending-behaviour courses in order to demonstrate that he was ready for release.

47.  The Government contended that, viewed in the round and taking into consideration the ordinary vicissitudes of prion life and - for a period at least - the applicant’s reluctance to engage with rehabilitative courses, the applicant had been appropriately progressed through the prison system. They emphasised that he had accessed a rehabilitative course prior to the expiry of his tariff and had subsequently been transferred to a different prison to enable him to access further courses. He had been assessed for the ETS and had for some time resisted undertaking any courses at all. He had then undertaken both the ETS and CALM courses. They concluded that the applicant had never been directionless within the prison system and that steps had been taken, both prior to and after tariff expiry, with a view to providing him with access to appropriate rehabilitative courses.

2.  The Court’s assessment

48.  In James, Wells and Lee, cited above, § 209, the Court explained that in cases concerning indeterminate sentences of imprisonment for the protection of the public, a real opportunity for rehabilitation was a necessary element of any part of the detention which was to be justified solely by reference to public protection. This required reasonable opportunities to undertake courses aimed at helping prisoners to address their offending behaviour and the risks they posed. While Article 5 § 1 did not impose any absolute requirement for prisoners to have immediate access to all courses they might require, any restrictions or delays encountered as a result of resource considerations had to be reasonable in all the circumstances of the case, bearing in mind that whether a particular course was made available to a particular prisoner depended entirely on the actions of the authorities (see § 218 of the judgment).

49.  In examining whether an applicant’s detention post-tariff has been unjustified for the purposes of Article 5 § 1 (a) of the Convention the Court “must have regard to the detention as a whole” (see James, Wells and Lee, cited above, § 201). Thus, where, as in the present case, the applicant claims that delay in his access to prison courses constituted a violation of Article 5 § 1 (a), the applicant’s general progression through the prison system must be assessed in light of the particular circumstances of the case (see, inter alia, Hall, cited above, § 32; and Black, cited above, § 54).

50.  It is clear from the papers before the Court that the applicant’s progress through the prison system began at an early stage. Prior to the expiry of his relatively short tariff in February 2008 (see paragraph 8 above), the applicant had completed the Victim Awareness course (see paragraph 6 above). The course was identified as one of his targets and, in so far as the applicant challenges its relevance to his risk of reoffending, it not for this Court to second-guess the decisions of those qualified to assess which rehabilitative courses were appropriate in his case.

51.  Following the expiry of the applicant’s tariff in February 2008, a Parole Board hearing took place and the panel concluded that further risk-reduction work was required (see paragraphs 9-10 above). In early April 2008 the applicant was transferred to another prison and his sentence targets were reviewed (see paragraph 12 above). The same month, he was referred for assessments for the ETS and CALM courses (see paragraph 12 above).

52.  It appears that following the referral, the applicant began to express concern about participating in rehabilitative courses. The report of an August 2008 meeting referred to the applicant’s fear of participating in group activities and the need for extra psychological assessment (see paragraph 15 above). By January 2009, the applicant was categorically refusing to participate in courses and to discuss his specific sentence targets with his offender supervisor. As a result, his offender supervisor considered it imperative that he be psychologically assessed (see paragraphs 16-17 above). His refusal to engage with his sentence plan targets to reduce his risk was recorded in his Sentence Planning and Review Report of 2 February 2009 (see paragraph 20 above).

53.  However, shortly afterwards, on 5 February 2009, the applicant changed his mind and agreed to take part in the ETS course (see paragraph 21 above). It is not surprising that, in these circumstances, no psychological assessment was undertaken, with efforts instead focused on ensuring the applicant’s participation in an ETS course in the near future. This was achieved when the applicant began the ETS in May 2009, completing it in June 2009 (see paragraph 23 above). Bearing in mind reasonable waiting times and the applicant’s own opposition to participation in course work, the delay of fifteen months following the expiry of his tariff for access to a second rehabilitative course cannot be considered unreasonable.

54.  The post-programme review for the ETS was completed in August 2009 and a course report prepared later that autumn. By this stage, the applicant was eighteen months post-tariff and had successfully completed two rehabilitative courses. At some point, he participated in an assessment for the HRP but was ultimately deemed to be unsuitable for that course (see paragraph 26 above). The CALM course had previously been identified as potentially suitable, but once again the applicant had shown some reluctance to participate (see paragraph 32 above). That reluctance, together with an issue relating to availability of staff, appears to have delayed his assessment for that course. In particular, at some point prior to April 2011, the applicant refused a prison transfer which would have enabled him to be assessed for the CALM course. There was also evidence that the applicant was prioritising his work over addressing his areas of risk (see paragraph 34 above). He subsequently commenced the course, completing it in October 2011 (see paragraph 36 above). Taking into account the courses which had already been provided to the applicant, and having regard to his own responsibility for at least part of the delay in affording him access to the CALM course, there was no unreasonable delay in this respect.

55.  In conclusion, it can be seen that in the present case, unlike in the case of James, Wells and Lee, prompt steps were taken to begin the applicant’s progression through the prison system. Throughout his period of detention, he was afforded regular access to relevant coursework and assessments. The Court is satisfied that a real opportunity for rehabilitation was provided to the applicant and that there was no unreasonable delay in providing him access to courses. There has accordingly been no violation of Article 5 § 1 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

56.  The applicant complained that the delay in holding the Parole Board review hearing, which had provisionally been scheduled for August 2009, did not comply with the “speediness” requirement in that Article. He relied on Article 5 § 4 of the Convention, which provides:

“4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

57.  By letter dated 21 February 2014, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.

58.  The declaration provided as follows:

“1.  In the particular circumstances of the present case the Government wish to express by way of a unilateral declaration their acknowledgement that in light of the judgments of the Court (Betteridge v the  United  Kingdom, no. 1497/10, 29 January 2013) and the UK Supreme Court (R (Faulkner & Sturnham) v Secretary of State for Justice [2013] UKSC 23 and R (Osborn) v Secretary of State for Justice [2013] UKSC 61) there has been a breach of the ‘speediness’ requirement of Article 5(4) of the Convention.

2.  The Government do so in the following circumstances:

1)  The Court has asked the Government whether the delay in holding the Applicant’s Parole Board review provisionally fixed for August 2009 complied with the ‘speediness’ requirement of Article 5(4) of the Convention.

2)  The Government accept that the ‘speediness’ requirement of Article 5(4) of the Convention was not met between August 2009 and the date scheduled for the deferred hearing, being 9 February 2010 (i.e. a period of six months).

3)  In fact, the hearing did not take place on 9 February 2010 but this was through no fault of the Parole Board. The hearing was deferred as a result of the Applicant’s decision to engage an independent psychologist and (through his solicitors) to warn the Parole Board on 29 January 2010 that he would wish to rely on a report from that psychologist at the hearing but could not guarantee that the report would be ready by the day of the hearing. The Parole Board properly decided on 2 February 2010 that, as a result, it would not be possible for the scheduled hearing to take place and therefore gave directions for the filing of the expert’s report and for further steps to be taken in advance of the next review.

4)  As a result of recent decisions mentioned above in paragraph 1, the Parole Board is currently undertaking substantial changes to the mechanism that it uses to manage and convene hearings.

3.  Accordingly, and in light of the above and the particular circumstances of this case, the Government offer to pay the Applicant the sum of € 400 to cover all pecuniary and non-pecuniary damage as well as costs and expenses, to be paid in pounds sterling into a bank account nominated by the Applicant within 3 months from the date of the striking out decision of the Court pursuant to Article 37 of the Convention. The payment will constitute the final settlement of the Applicant’s case as to Article 5(4) of the Convention.

4.  The figure of € 400 is calculated consistently with the approach adopted by both the Court and the domestic courts of the United Kingdom as to the amount of money that should be paid as just satisfaction for a period of delay in a Parole Board review of 6 months.”

59.  In his written observations, the applicant complained about the amount of compensation offered by the Government. He argued that he was entitled to a higher level of compensation since had the review taken place earlier, he would have been released. He relied on the fact that at the review in May 2012, his release was ordered. He also argued that the period of delay had been far longer than six months. In his contention, the delay was from August 2009 until the holding of a lawful review in May 2012. He claimed that a figure of around 50,000 pounds sterling (GBP) would be more appropriate. However, if the Court did not accept his argument that he would have been released had there been no breach of Article 5 § 4, a lesser sum of around GBP 3,000 would be appropriate to reflect the thirty-three month delay which he claimed had occurred.

60.  Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

61.  In certain circumstances, the Court may strike out an application, or part thereof, under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

62.  To this end, the Court examined carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no.  28953/03).

63. The applicant has alleged that there was a thirty-three month delay in his case, while the Government contended that there was a delay of six months. The first matter for the Court to resolve is therefore the length of the delay in the case.

64.  There is no dispute that the Parole Board hearing was supposed to take place in August 2009. It finally took place in April 2011 (see paragraph 34 above), some twenty months later. While it is true that the Parole Board’s decision was the subject of a successful judicial review action, it is significant that the scope of that action was limited to the decision not to transfer the applicant to open conditions. The applicant did not challenge the decision to refuse release. It is clear from the court’s judgment of January 2012 that the Parole Board was required to consider afresh only the question of the applicant’s possible transfer to open conditions (see paragraph 35 above). In these circumstances, there is no basis for the applicant’s submission that the April 2011 Parole Board decision did not constitute a lawful review of whether he was lawfully detained for the purposes of Article 5 § 4.

65.  The second matter for examination is the extent to which the State bears responsibility for the twenty-month delay in the applicant’s case. The documents before the Court show that the hearing scheduled to take place in August 2009 was deferred to February 2010 for unknown reasons (see paragraph 25 above). The Government have admitted responsibility in respect of this six-month period of the delay (see paragraph 58 above).

66.  The hearing was then further deferred for seven months to September 2010 following the applicant’s solicitors’ intimation that they had commissioned a psychologist’s report that was unlikely to be ready for the February hearing (see paragraph 27 above). While the applicant cannot be criticised for seeking to obtain evidence of his reduced risk to present to the Parole Board, he must bear the consequences when such actions result in delay (see, mutatis mutandis, Beggs v. the United Kingdom, no. 25133/06, § 264, 6 November 2012; and Jordan v. the United Kingdom (no. 2), no. 49771/99, § 44, 10 December 2002). However, while it appears that the report was timeously lodged with the Parole Board in March 2010, followed by an addendum in May 2010 (see paragraphs 28-29 above), the hearing did not take place in September 2010 as planned but was further deferred until 13 January 2011, some four months later (see paragraph 31 above). The Government have provided no explanation for the delay from September 2010 to January 2011. The case-file itself provides little clarification, with reference being made to a delay in the preparation of a prison report (see paragraph 30 above). Given the delay which had already occurred, and in the absence of any explanation justifying the further delay, the Court is satisfied that this four-month period of delay was imputable to the State.

67.  Thereafter, the Parole Board hearing was again deferred because the applicant’s offender supervisor was unable to attend (see paragraph 33 above). As noted above, the hearing ultimately took place in April 2011. In all the circumstances of the case, and having regard to the fact that by this stage the hearing had already been delayed, for various reasons, for seventeen months, the Court does not consider, on the basis of the information available, that the non-availability of the applicant’s offender supervisor justified the deferral of the hearing for a further three months.

68.  The Court accordingly finds that the period of delay attributable to the State in the present case is thirteen months.  In its recent judgment in Betteridge v. the United Kingdom, no. 1497/10, 29 January 2013, it established its practice concerning complaints about the violation of 5 § 4 as a consequence of a delay in a Parole Board review. The delay in that case was, as in the present case, thirteen months and the Court awarded the applicant EUR 750 in non-pecuniary damage. The sum of EUR 400 proposed by the Government in the present case is therefore inadequate to compensate the applicant for the feelings of frustration occasioned by the thirteen-month period of delay. The Government’s unilateral declaration must therefore be rejected.

69.  In conclusion, there has been a violation of Article 5 § 4 in the present case as regards the thirteen-month delay between August 2009 and February 2010 and September 2010 and April 2011.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

70.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

71.  The applicant claimed GBP 50,000 in respect of non-pecuniary damage for the violation of Article 5 § 4 in his case, arguing that he would have been released has his review taken place earlier. In the alternative, if the Court was not satisfied that he would have been released, he claimed GBP 3,000.

72.  The Government did not accept that the applicant would have been released. They considered the sum of EUR 400 to be sufficient just satisfaction in the present case.

73.  For the reasons given above (see paragraphs 65-69 above), the Court awards the applicant EUR 750 in respect of non-pecuniary damage in respect of the thirteen-month delay in his case.

B.  Costs and expenses

74.  The applicant claimed costs and expenses but provided no details of the sums involved or vouching of costs incurred. The Court therefore declines to make any award under this head.

C.  Default interest

75.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been no violation of Article 5 § 1 of the Convention;

 

3.  Holds that there has been a violation of Article 5 § 4 of the Convention in respect of the periods from August 2009 to February 2010 and from September 2010 to April 2011;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months, seven hundred and fifty euros (EUR 750), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into pounds sterling at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

     Fatoş Aracı                                                                       Nona Tsotsoria
Deputy Registrar                                                                       President