CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 octobre 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 British citizen, born in 1913 and at present detained in Wormwood Scrubs Prison, London.   He was convicted on .. March, 1964 at Buckinghamshire Assizes on two counts of conspiracy to stop and rob a mail train, and of being one of the robbers of the train, and was sentenced to concurrent terms of 21 and 24 years' imprisonment. The applicant appealed against the judgment. The Court of Criminal Appeal, on .. July, 1964, dismissed the appeal against his conviction on the first count, quashed the conviction of the second count and substituted a verdict of guilty on three counts of receiving, and passed concurrent sentences of 14 years on the four counts. It appears that the court based their decisions on the following facts.   The applicant and one Y. were arrested in B. six days after the great train robbery. They had aroused the suspicions of a landlady and tried to resist arrest. Keys found on the applicant opened suitcases in an Austin van containing £56,000, much of which came from the train robbery, which the applicant, according to police evidence, admitted. At the flat which the two men had rented in B. the police found another £6,000 mixed up with the applicant's personal property.   The applicant's defence was and still is that he had known Y. for some time but had no knowledge of the train robbery until he read about it in the newspapers. He claimed to have travelled to Oxford from his home in London on the day after the robbery to collect some money that Y. owed him and said that he did not know until later on that the cases found in the Austin van contained money.   It appears that in his appeal the applicant sought to call Y. to give further evidence that he had played a minor part in the affair. He also sought to call his wife and son to testify that he had been at home when the robbery took place. The Court of Criminal Appeal ruled that the latter evidence had been available at the time of the trial and that Y.'s evidence would now be very much in doubt in view of his apparent change of heart since he had been unwilling to make a statement at the trial. The Court, therefore, refused to allow the witnesses named by the applicant.   In May, 1966, the applicant applied for a writ of Habeas Corpus and was informed by letter of .. June, 1966 from the Head Clerk of the Crown Office that such application must be made in court and in accordance with Order 59 of the Rules of the Supreme Court and, further, that a Divisional Court of the Queen's Bench Division, on .. June, 1966, had considered the application and had refused to relax the said rules in his favour or to grant him legal aid. The Court stated in its decision that the applicant's complaints of misconduct on the part of his counsel and of the police as well as his allegations that evidence was suppressed were clearly an attempt only to use the process as a means of re-opening an appeal.   The applicant then applied to the Law Society for legal aid but received negative replies by letters of .. November and .. December, 1966. The solicitors, W. and Sons and the official solicitor, by letters of .. October and November, 1966 November, 1966, also rejected his requests for assistance. The applicant, therefore, again informally petitioned in November, 1967 for a writ of Habeas Corpus, claiming that he had new evidence to prove his innocence. He was informed by letter of .. November, 1967 from an Assistant Master of the Crown Office that prisoners were not permitted to make more than one informal approach for assistance to move for a writ of Habeas Corpus in respect of the same matter. The applicant was also informed by letter of .. January, 1968 from the Registrar of the Court of Criminal Appeals that he had no right to bring a fresh appeal.   It appears that various representations were made by, or on behalf of, the applicant with the Home Office. However, by letters of .. June and .. November, 1966, the applicant was informed that no action could be taken on his behalf.   The applicant complains that he was wrongly convicted and sentenced. He claims to be innocent and repeats that he only met Y. to collect the money which he owed him. He contends that he is a victim of a criminal conspiracy to which the police and judiciary, including his legal advisers were all parties; that his trial and also his appeal were wilfully rigged and all evidence in his favour suppressed; he alleges that three witnesses vital to prove his innocence were not allowed to give any kind of evidence and that he was represented against his will by Jewish counsel.   The applicant alleges violation of Articles 6, paragraph (3) (c) and (d), and 11 of the Convention and requests the Commission to help him establish his innocence.   THE LAW   Whereas, with regard to the applicant's complaints concerning his conviction and sentence, Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "within a period of six months from the date on which the final decision was taken"; and whereas the Commission has already held in a number of previous cases that the "final decision" within the meaning of Article 26 (Art. 26) refers solely final decision involved in the exhaustion of all domestic remedies according to the generally recognised rules of international law (see Application No. 918/60 - X. v. Federal Republic of Germany - Collection of Decisions, Vol. 7, p. 108); whereas, in the present case, the applicant was serving a prison sentence after conviction and after having unsuccessfully appealed to the Court of Criminal Appeal;   Whereas no further right of appeal was available to the applicant, there being no indication that there was in the present case any issue of public interest, for the determination of which leave to appeal to the House of Lords would have been given.   Whereas, furthermore, his subsequent application for an order of Habeas Corpus cannot be considered as part of the normal appeal procedure in the United Kingdom judicial system;   Whereas, indeed the object of an application for an order of Habeas Corpus is to enable a detained person to have determined the legality of his detention, such order would be inapplicable in the case of a person in detention following conviction by a court of competent jurisdiction;   Whereas it follows that, in the circumstances of the present case, an application for an order of Habeas Corpus was not an effective and sufficient remedy and does not, therefore, constitute a domestic remedy under the generally recognised rules of international law;   Whereas it follows that the decisions regarding this application for an order of Habeas Corpus cannot be taken into consideration in determining the final decision for the purpose of applying the six months' time-limit laid down in Article 26 (Art. 26); whereas, therefore, the final decision regarding the applicant's conviction and sentence is the decision of the Court of Criminal Appeal which was given on .. July, 1964; whereas the present application was not submitted to the Commission until .. December, 1967, that is more than six months after the date of this decision; whereas, furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period;   Whereas it follows that this part of the application has been lodged out of time (Articles 26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention);   Whereas, in regard to the applicant's complaints relating to the refusal of his application for the issue of an order of Habeas Corpus and the court proceedings concerned, 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 Commission has already noted that an order of Habeas Corpus does not form part of the normal appeal procedure in criminal cases; whereas therefore, as indicated by the Criminal Court, the applicant was clearly attempting, by applying for such writ, to obtain a re-opening of the criminal proceedings against him; whereas the Commission has frequently stated that the right to such retrial is not as such included among the rights and freedoms guaranteed by the Convention; and   Whereas, further, insofar as he complains of the proceedings in connection with his application for a Habeas Corpus order, the Commission has consistently held in analogous proceedings relating to an application for a retrial that such proceedings fall outside the scope of Article 6 (Art. 6) of the Convention (see Applications Nos. 864/60, X. v. Austria - Collection of Decisions, Vol. 9, p. 17 and 1237/61, X. v. Austria - Yearbook, Vol. V, p. 96); 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;   Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE