CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 octobre 1966

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is a British subject, born in 1909. He is presently serving a total of seven years' imprisonment in Wormwood Scrubs Prison, having been convicted on 13th December, 1963, at the Central Criminal Court on eleven counts of fraud, forgery and perjury.   I. The Applicant appealed to the Court of Criminal Appeal against his conviction and sentence. He asked inter alia for a new trial on the grounds of discovery of fresh evidence. The appeal, which came before the Court of Criminal Appeal in July, 1964, appears to have been unsuccessful, having been at least in part abandoned by the Applicant with leave of the Court after the Court had refused to grant an adjournment.   II. The Applicant then petitioned the Home Secretary, on 9th February, 1965, 27th July, 1965, 10th September, 1965, 14th October, 1965, 17th October 1965, 20th December, 1965, 29th December, 1965 and 21st January, 1966. He states that on 24th March, 1966, these petitions were rejected in the following terms "... de Courcy has asked for his case to be referred to the Court of Criminal Appeal; for the grant of a free pardon; for permission to institute a private prosecution for perjury against D. [a witness for the prosecution] and for an extradition order to be issued in respect of D. Could de Courcy please be informed that the Secretary of State has carefully considered these petitions, but can find no ground for taking action in regard to them."   The Applicant's wife also petitioned the Home Secretary, without success, on 29th December, 1965, 13th January, 1966 and 24th January, 1966.   III. The Applicant states that he was wrongly convicted and that he has been deliberately prevented from establishing this fact. In particular he states that a certain D., the main prosecution witness at his trial, influenced by the prosecution, concealed the existence of 1,400 documents until after the Applicant's conviction. According to the Applicant this witness has made eight signed statements admitting that his evidence at the Applicant's trial was fabricated. The Applicant states that other evidence has been discovered which proves him to be innocent.   The Applicant states his case as follows in his letter of 9th April, 1966: "My allegations and complaints are essentially based on the fact that since 13.1.66 a whole body of fundamental evidence has been disclosed which wholly upsets not only the conviction but involves my vital civil rights, now of active relevance to me and others."   IV. In particular, he complains that the Home Secretary has, since 13th January, 1966, refused:   (a) to refer the case to the Court of Criminal Appeal as was allegedly the Applicant's constitutional right, and the Home Secretary's constitutional duty;   (b) to grant a free pardon;   (c) to give permission to institute a private prosecution for perjury against the principal witness for the prosecution.   (d) to institute extradition proceedings against that witness for the same purpose;   (e) to give leave to the Applicant "to apply for a writ of habeas corpus that I be produced before a Judge of the High Court of Justice to apply for an injunction to restrain the Home Secretary from stopping me from such proceedings in the UK Courts as are requisite to demonstrate evidence of my wrongful conviction." (In his letter of 25th May, 1966, the Applicant makes it clear that his intention was not to apply for habeas corpus in respect of detention).   V. The Applicant further complains that he has been "shut out by the Home Secretary from every Court in the United Kingdom" and that he has been "wholly deprived of all access to any Courts whatsoever." He states that there has been a decision or directive to this effect.   The Applicant makes the following allegations regarding this complaint.   (a) He has been refused permission to instruct solicitors and counsel; his letter of 28th February, 1966, states that "all verbal and written communications have been forbidden";   (b) On 15th February, 1966, the following letters were confiscated:   a letter dated 4th February 1966, in which the Applicant instructed a solicitor to examine evidence with a view to prosecuting the main prosecution witness at the Applicant's trial;   a letter dated 5th February 1966, in which the Applicant instructed a firm of solicitors to issue a writ against the same witness;   a letter dated 7th February 1966, in which the Applicant instructed a solicitor to make a civil claim against nine persons;   (c) On 1st February, 1966, a letter dated 24th January, 1966, from the Applicant to the "Master of the High Court" in Rhodesia was confiscated. This letter, and a previous letter of 21st January, 1966 (which was apparently received and acted on in Rhodesia) related to a claim made by the Applicant against a company in liquidation in Rhodesia, which claim had been expunged because no reply had been received in Rhodesia to letters addressed to the Applicant and dated 20th August and 1st November, 1965;   (d) On 9th March, 1966, a personal application which the Applicant made to the Master of the Crown Office (in London) was confiscated. This application was similar to that referred to under IV (e) above, and was made for the purpose of enabling the Applicant to establish "documentary evidence of my wrongful conviction which evidence had become available since the exhaustion of all legal processes open to me in normal course following upon conviction";   (e) The Applicant states that in a civil action which was brought against him during or before 1963, his solicitors were informed on 29th October, 1965, that the hearing was fixed for 7th June, 1966. This information reached him on 4th May, 1966, much too late for a defence. It appears that this case has now been adjourned to January, 1967;   (f) The Applicant states that he has been prevented from defending a civil action in the Supreme Court of the Bahamas. He has submitted copies of communications between lawyers in the Bahamas and solicitors in London, showing that judgment was entered against a company called X. Co. Limited for £133,799, in default of defence;   In a letter dated 31st March, 1966, to the London solicitors, the lawyers in the Bahamas disclaim responsibility for the judgment, stating that the request made to these solicitors for instructions to defend had not been answered;   (g) The Applicant states that the fact that he is not permitted to have access to civil courts prevents him from taking action to deal with harmful press publicity;   (h) The Applicant complained on 5th May, 1966, that he was forbidden from writing "any letters of instruction to solicitors or to any other party whether in connection with my application to the ... Commission or ... any other matter, save 2 per day on 5 days a week". On 27th May, 1966, solicitors wrote to the Home Secretary on behalf of the Applicant asking for the restriction to be removed.   VI. In relation to his imprisonment he states that for 10 months he was kept in solitary confinement 20 hours out of 24. He states that the light was kept burning in his cell 24 hours a day.   VII. The Applicant states that "all domestic remedies open to the Applicant have since 13.1.66 been exhausted."   He also states that the Home Secretary's decision of 24th March, 1966, "will dispose of any possible question as to the date of the decisions of which complaint is made."   VIII. Various approaches have been made in this case, on behalf of the Applicant, to the Commission, including a request for information from a Member of Parliament who has been considering the Applicant's case.   Complaints have been received from other persons and companies saying that their rights depend on the Applicant's claims, and supporting his application.   The Applicant has also informed the Commission that as he is "an Irish National by right of birth [he has] felt it proper to bring the allegations to the attention of the Government of the Republic of Ireland", and has referred in this connection to Article 24 of the Convention.   The Applicant reiterates the argument that there is an obvious design in the proceedings to prevent him from getting justice. He points out that his correspondence is examined and copied, and wishes to be assured that there will be no "secret exchanges". He suggests that propaganda is carried out against him and that the United Kingdom authorities are "attempting to deter witnesses".   Further, he is anxious for the Commission to act quickly   He asks "for his person to be produced in Strasbourg forthwith" so that he can marshal the evidence to be produced to the Commission. He also asks to be released on parole for the purpose of attending the Commission. The request to release the Applicant on parole or to send him to Strasbourg in custody was also made to the Home Secretary by lawyers acting on the Applicant's instructions.   IX. In relation to his Application to the Commission, the Applicant at one time complained that he had no access to documents which he considered relevant as the lawyer who had represented the Applicant at his trial refused to deliver them to him. It appears that these have now been delivered to him. The Applicant appears to be considering an action for negligence against this lawyer in respect of his conduct of the Applicant's defence.   The Applicant stated in his Application of 21st February, 1966, that he had been refused leave to make the Application to the Commission or to instruct solicitors or counsel. On 25th February, 1966, he wrote that he was now able to make his Application, and to instruct solicitors and counsel.   The Applicant later complained that because of a decision of the Board of Trade he was unable to obtain copies of certain accounts for the purpose of forwarding them to the Commission. The Applicant states that he has no doubt that this has been arranged between various Government Departments in the general policy of the Crown to stifle the issues".   The Applicant has sent to the Commission several files of documents, setting out in detail the evidence relating to his complaints in particular concerning his conviction. He states, however, that this does not exhaust the evidence which he wishes to submit. He wishes to present his case before the Commission in person, under Article 36, paragraph 2, of the Rules of Procedure "assisted by his legal advisers". He asks for his case to be dealt with urgently by the Commission, and states that the limitation period is running out in respect of actions which he wishes to bring.   X. The Applicant invokes Articles 5 and 6 of the Convention. He seeks a new trial on the original criminal charges against him. He also wishes to have the civil rights of himself and others determined in the Courts.   THE LAW   Whereas in regard to the Applicant's complaints as a whole it is to be observed that the Commission can only receive an application lodged by an individual, non-governmental organisation or group of individuals under Article 25 (Art. 25) of the Convention if the State complained against has ratified the Convention and has expressly declared that it recognises the competence of the Commission to receive such applications;   Whereas the United Kingdom has signed and ratified the Convention;   Whereas, however, by the terms of the declaration made on 14th January, 1966, by the United Kingdom under Article 25 (Art. 25) of the Convention, the competence of the Commission recognised under that Article extends only to applications whereby a person, non-governmental organisation or group of individuals claims to be the victim of a violation of the Convention in relation to any act or decision occurring or facts or events arising subsequently to 13th January, 1966; whereas, therefore, the Applicant's complaints relating to acts or decisions occurring or facts or events arising prior to 14th January, 1966, and in particular the Applicant's complaints relating to his trial and his appeal therefrom to the Court of Criminal Appeal are excluded from the competence of the Commission to receive them and must be rejected ratione temporis in this respect;   Whereas in regard to the Applicant's complaints that, subsequently to 13th January, 1966, he has not been granted a free pardon or a new trial and that the Home Secretary has not exercised his discretionary power to refer the Applicant's case to the Court of Criminal Appeal, it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set forth in Section I of the Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals;   Whereas otherwise its examination is outside the competence of the Commission ratione materiae; whereas the right to be accorded a pardon is not as such included among the rights or freedoms guaranteed by the Convention; whereas in this respect the Commission refers to its constant jurisprudence (see for example Decision No. 2186/64 - L. v. the Federal Republic of Germany); whereas further the right to obtain a reopening of proceedings by a retrial or otherwise after the determination of a criminal charge against him has become res judicata is also not as such included among the rights and freedoms guaranteed by the Convention; (see Decision No. 1237/61, T. v. Austria, Yearbook V, page 91); whereas it follows that this part of the Application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas in regard to the Applicant's complaints that he has not been enabled to institute a private prosecution for perjury against a witness at his trial and that extradition proceedings were not taken against this witness for this purpose, it is similarly to be observed that these alleged rights are not as such included among the rights and freedoms guaranteed by the Convention, and that therefore this part of the Application is also incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas in regard to such of the Applicant's complaints as appear to relate to the actions of lawyers who had represented him in civil or criminal proceedings, it results from Article 19 (Art. 19) of the Convention that the sole task of the Commission is to ensure the observance of the engagements undertaken in the Convention by the High Contracting Parties, being those Members of the Council of Europe which have signed the Convention and deposited their instruments of ratification;   Whereas, moreover, it appears from Article 25, paragraph (1) (Art. 25-1), of the Convention that the Commission can properly admit an application from an individual only if that individual claims to be the victim of a violation of his rights under the Convention by one of the Parties which have accepted this competence of the Commission; whereas it results clearly from these Articles that the Commission has no competence ratione personae to admit applications directed against private individuals;   Whereas it follows that this part of the Application is incompatible with the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2) (see Application No. 1599/62, Yearbook of the European Convention on Human Rights, Volume 6, pages 348, 356);   Now therefore the Commission   1. Declares inadmissible the parts of the Application dealt with above;   2. Adjourns its examination of the remainder of the Application.