CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 février 1969

.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 citizen of the United Kingdom, born in 1923 and residing in Coventry. He is the leader of the British Z. Movement. When lodging his application he was detained in prison at Aylesbury.   On .. November, 1966, the applicant was arrested on suspicion of having committed offenses under Section 6 of the Race Relations Act, 1965. The said Section reads as follows:   "A person shall be guilty of an offence under this Section if, with intent to stir up hatred against any section of the public in Great Britain distinguished by colour, race, or ethnic or national origins - (a) he publishes or distributes written matter which is threatening, abusive or insulting; or (b) he uses in any public place or at any public meeting words which are threatening, abusive or insulting, being matters or words likely to stir up hatred against that section on grounds of colour, race or ethnic or national origins."   On .. January, 1967, at Devon Assizes the applicant was convicted on two counts of conspiracy to contravene and one count of inciting to contravene the provisions of the said Section 6 of the Race Relations Act and sentenced to a total term of eighteen months' imprisonment. The applicant, who pleaded not guilty, conducted his own defence. At the same time , one Y., a discharged Navy rating and 19 years of age, was convicted on charges of incitement to racial hatred and conspiracy to commit such offence.   The applicant's application for leave to appeal to the Court of Appeal against his conviction and sentence was refused by a single judge on .. March, 1967. The applicant complains that it was not within the judge's discretion to refuse his application, since it was based on a point of law, namely that the trial judge had misdirected the jury. In particular, the applicant alleged that the judge had advised the jury to disregard the criterion of "insult", one of the vital elements of Section 6 of the Race Relations Act. The applicant considers that the refusal is only understandable as an act of political discrimination contrary to Article 14 of the Convention. He maintains that the finding of the single judge that he had not indicated with clarity the alleged point of law was wrong as he had adequately described it. On the other hand, he had not been able to give precise references to or quote the transcript of the trial since he had not received a copy in time despite his request for such a copy. Having been informed that this application could only be decided by the judge himself, at the same time as he decided his application for leave to appeal, he notified the Court that he wished to purchase a copy. He was then told that, as he had applied of a free copy, he had to await the decision on this, before he would be able to purchase a copy.   The applicant did not renew his application for leave to appeal to the Full Court. He submits that he abandoned his application in view of a statement on the back of the form by which he was given notice of the refusal of the single judge. According to the applicant, this statement advised the appellant not to persevere with his application to the Full Court in disregard of the single judge's refusal, as this, if unsuccessful, was likely to result in substantial loss of remission time for good conduct. Rather than allow the likelihood that further political prejudice would uphold the refusal and, as a result, by causing forfeiture of remission in effect increase his sentence, he did not renew his application.   In May 1967, the applicant addressed himself to a Member of Parliament who made representations to the Home Secretary. On .. July, 1967, the Home Office replied, however, that the Home Secretary could not re-try a case or act as a further court of appeal either as regards conviction or sentence nor did he think it proper to comment on the sentence passed in a particular case. The Home Secretary found no grounds which could justify any interference with the trial court's decision.   In November 1967, the Member of Parliament concerned again made detailed representations to the Home Secretary specifically regarding the alleged misdirection of the jury and alleged denial of the applicant's right to appeal, but without success. The applicant himself petitioned the Home Secretary on these particular grounds but again the Home Secretary refused to take any action. This refusal was notified to the applicant on .. December, 1967.   On .. December, 1967, the applicant was notified that the Lord Chancellor to whom he had similarly applied would take no action to remedy the alleged injustices in his case.   The applicant's specific complaints .- besides the above-mentioned alleged violation of Article 14 of the Convention - can be summarised as follows:   (a)   Section 6 of the Race Relations Act in its interpretation and application in the applicant's case violates the right to freedom and expression guaranteed by Article 10 of the Convention. He submits that the two leaflets and the pamphlet concerned, although factually critical of coloured immigration and Jewish influence, were devoid of any abusive or threatening language, or advocacy or provocation of violence, but insisted on a parliamentary solution of the problems involved.   The applicant complains that Section 6 of the Act prohibits even fair and factual criticism of certain racially differentiated sections of the public, thereby providing for some the privilege of immunity from criticism at the price of the loss to others of legitimate free speech. The said Section cannot, in the applicant's opinion, be justified under Article 10, paragraph (2), of the Convention.   (b)   The applicant alleges that, in consequence of his conviction being contrary to Article 10, he has been wrongfully deprived of his liberty while serving his sentence in violation of Article 5 of the Convention. He further alleges violation of Article 4 by having been subjected to compulsory labour while wrongfully deprived of his liberty.   (c)   Even if Section 6 of the Race Relations Act should be deemed consistent with Article 10 of the Convention, the applicant submits that the process of his conviction under it violated Article 5 of the Convention since he was denied the right to appeal prescribed by the law of the United Kingdom.   (d)   In the outcome of the applicant's case, the authorities of the United Kingdom have failed to implement Article 13 of the Convention which provides that a victim of a violation of the Convention shall have an effective remedy before a national authority.   THE LAW   Whereas, in regard to the applicant's complaints regarding his conviction under the Race Relations Act and the court proceedings concerned, it is to be observed that, under Article 16 (Art. 16) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law;   Whereas the applicant had the possibility of renewing his application for leave to appeal to the Full Court but failed to avail himself of this possibility; whereas the mere fact that the applicant subsequently submitted his case to the Home Secretary does not constitute a remedy for the purpose of Article 16 (Art. 16) of the Convention; whereas, therefore, he has not exhausted the remedies available to him under English law;   Whereas, moreover, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from pursuing his application for leave to appeal; whereas, in particular, the alleged cautionary note on the form whereby the applicant was informed of the single judge's refusal to grant him leave to appeal could not be considered as absolving him from exhausting the remedy available to him;   Whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3) of that Convention has not been complied with by the applicant;   Whereas, insofar as the applicant complains separately that Section 6 of the Race Relations Act, both generally and as applied to him, violates the freedom of expression guaranteed by Article 10 (Art. 10) of the Convention, the Commission first recalls that it has frequently stated that it is not its task to examine in abstracto the conformity of domestic legislation with the provisions of the Convention (see e.g. application No. 290/57 - X. v. Ireland, Yearbook, Vol. 3, p. 214);   Whereas the question, therefore, which remains to be determined is whether or not the application of the above statutory provision to the applicant in the present case was inconsistent with the Convention;   Whereas, again having regard to the rule concerning the exhaustion of domestic remedies, it is true that the applicant could not specifically rely on Article 10 (Art. 10) of the Convention in order to appeal against his conviction under Section 6 of the Race Relations Act; whereas, however, the Commission refers to its previous jurisprudence according to which an applicant's omission to use, on a particular point, one of the remedies available to him, is sufficient to constitute non-exhaustion of domestic remedies provided that, by raising this point, and this point alone, before the domestic courts, he would have had some chance of winning his whole appeal (Application No. 712/60 - Retimag S.A. v. the Federal Republic of Germany, Yearbook, Vol. 4, p. 384);   Whereas the Commission has already rejected the applicant's complaint under Section 6 of the Race Relations Act on the ground of non-exhaustion of domestic remedies; whereas it follows that the condition as to exhaustion of domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention has again not been complied with by the applicant with regard to this part of this application;   Whereas, insofar as the applicant complains of having been wrongfully deprived of his liberty, it is clear that the applicant had been convicted by the judgment of a competent court which had become res judicata, and was therefore lawfully detained in accordance with the provisions of Article 5, paragraph (1) (a) (Art. 5-1-a) of the Convention;   Whereas the applicant further complains that he was subjected to compulsory labour while serving his sentence; whereas it is true that Article 4, paragraph (2) (Art. 4-2), of the Convention stipulates that "No one shall be required to perform forced or compulsory labour";   Whereas, however, paragraph (3) of the said Article (Art. 4-3) states that for the "purpose of this Article the term 'forced or compulsory' labour shall not include ... any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (Art. 5) of the Convention".   Whereas the Commission has already found that the applicant's detention was imposed by the competent court in a lawful manner; whereas, accordingly, the work performed during his detention is covered by Article 4, paragraph (3) (a) (Art. 4-3-a), taken in conjunction with Article 5 (Art. 5) (see the Commission's decision on the admissibility of applications Nos. 3134/67, 3172/67 and 3188 to 3206/67, Twenty-one detained persons v. the Federal Republic of Germany, Collection of Decisions, Vol. 27, p. 97);   Whereas, in conclusion, t he Commission finds that an examination of these parts of the application, including an examination ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Articles 4 and 5 (Art. 4, 5); whereas it follows that, in this respect, the application is also manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Whereas the applicant finally complains that the United Kingdom Government was responsible for a breach of Article 13 (Art. 13) of the Convention in that it failed to provide him with an effective remedy before a national authority; whereas, however, this provision relates exclusively to a remedy in respect of a violation of one of the rights and freedoms set forth in the Convention (see the Commission's decisions on the admissibility of Application No. 472/59 - X. v. Federal Republic of Germany, Yearbook, Vol. 3, p. 207, No. 655/59 - X. v.the Federal Republic of Germany, ibid. p. 280, and No. 3325/67 X., Y., Z., V. and W. v. the United Kingdom, Collection of Decisions, Vol. 25, p. 117); whereas the applicant, not having established even the appearance of a violation of one of the other rights invoked by him, there is in the present case no basis for the application of Article 13 (Art. 13) of the Convention; whereas it follows that this part of the application is incompatible within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention;   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE