CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.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 }  AS TO THE ADMISSIBILITY OF   Application No. 12301/86 by Graham Gordon GILLARD and Patricia Ann GILLARD against the United Kingdom             The European Commission of Human Rights sitting in private on 13 July 1987, the following members being present:                      MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         S. TRECHSEL                         F. ERMACORA                         E. BUSUTTIL                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs.   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ                         C.L. ROZAKIS                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 17 April 1984 by Graham Gordon Gillard and Patricia Ann Gillard against the United Kingdom and registered on 1 May 1986 under file No. 12301/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is of British nationality born in 1943 and currently serving a prison sentence in H.M. Prison Gartree.   The second applicant, his wife, is of British nationality born in 1947 and currently serving a prison sentence in H.M. Prison Styal.   The facts as submitted by the applicants may be summarised as follows.           The first applicant was arrested on 24 May 1982 in connection with the killing of two people.   He was subsequently remanded in custody on two charges of murder and two charges of conspiracy.   In July 1982, the second applicant was also charged with two offences of conspiracy to murder and two offences of conspiracy to pervert the course of justice.   The applicants allege that the police could find no evidence against them and accordingly entered into conspiracy with other local criminals implicated in the incident to secure the applicants' conviction.   They also allege that the police assisted the prosecution witnesses to re-adjust their evidence to fit the prosecution's case and that the police searched the first applicant's cell while he was absent.           The applicants were committed for trial on 20 January 1983 and the trial itself began in June 1983.   The first applicant had prepared questions to put to the prosecution witnesses to expose the conspiracy but his counsel refused to believe his allegations or to conduct the defence in the manner he wished.   The applicants were found guilty on 28 July 1983, the first applicant being sentenced to life imprisonment for murder and the second applicant to twelve years' imprisonment for conspiracy to commit murder and to pervert the course of justice.           The applicants appealed against conviction, on grounds inter alia that the judge had failed to direct the jury correctly as to the credibility of the evidence given by the prosecution witnesses and that he had failed to remind the jury that there was no forensic evidence to prove the first applicant was at the scene of the murder or that one of the prosecution witnesses had failed to pick out the first applicant at an identification parade.   The first applicant also lodged additional grounds of appeal in which he stated that the evidence had been fabricated by the police and that the trial judge, who had been involved in the earlier trial of a defendant who had accused the first applicant of being involved in various crimes, had been biased against him.           The applicants' applications for leave to appeal were refused by a single judge of the Court of Appeal and their renewed application dismissed by the full Court of Appeal on 29 March 1985.           The applicants claimed from the outset that their conviction and imprisonment were unlawful.   The applicants submitted an application for habeas corpus to the Royal Courts of Justice but were informed on 12 November 1986 that though the Court had considered their application, it did not find it necessary to direct that the applicants should be allowed to present their application in person or that they should have the assistance of the Official Solicitor in making a formal application.   The applicants were informed that an application could still be made on their behalf by counsel.   However, their applications for legal aid for this purpose had been refused on 9 October 1986 on the grounds that, inter alia, they had not shown that they had reasonable grounds for taking these proceedings and that their application would have no prospect of success.   Their appeal against this decision was refused by letter dated 25 November 1986.   COMPLAINTS           The applicants complain of being subjected to mental torture contrary to Article 3 of the Convention as a result of their conviction and imprisonment for offences which they claim they did not commit.           The applicants further complain that they are being detained contrary to Article 5 paras. 1 and 4 of the Convention.   They also complain that they have not received a fair trial within the meaning of Article 6 para. 1 of the Convention and they also invoke Article 6 para. 2 of the Convention in connection with their trial and conviction.           They complain inter alia in this regard that the police conspired to adjust the evidence to secure their conviction and that the judge was biased, having already been involved in the trial of a defendant who had accused the first applicant of criminal involvement. The applicants also complain that an article on crime statistics on the Police Gazette 1982, which was reproduced in a local newspaper, prejudiced their trial, since it stated inter alia that in 1982 in all cases of homicide the offender was detected within a few days.           The applicants also complain that their family life has been destroyed and that the prison authorities have censored their correspondence to the police, and to the Commission.   They complain that considerable amounts of their mail have gone missing and that they have received no satisfactory explanation from the Post Office or Home Office.   They invoke Article 8 of the Convention.           The applicants also complain that they have been discriminated against contrary to Article 14 of the Convention because they have dared to challenge the abuses of the legal system.   THE LAW   1.       The applicants invoke Article 3 (Art. 3) of the Convention in respect of their conviction and imprisonment for offences which they allege that they did not commit.           With regard to the judicial decisions of which the applicants complain the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g.   No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 p. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45) and finds no appearance of a violation of Article 3 (Art. 3) of the Convention in the decisions complained of.           It is true that the applicants also complain that they have not received a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention which provides:           "In the determination of ... any criminal charge against him,         everyone is entitled to a fair and public hearing within a         reasonable time by an independent and impartial tribunal         established   by law..."           The question of whether a hearing conforms to the standards laid down in Article 6 para. 1 (Art. 6-1) of the Convention must be decided on the basis of an evaluation of the proceedings in their entirety and not on the basis of an isolated consideration of any one particular incident or aspect (see e.g.   Nielsen v.   Denmark, Application No. 343/57, Dec. 2.9.59, Yearbook 4 p. 548; Application No. 5574/72, Dec. 21.3.75, D.R. 3 p. 10; Application No. 7306/75, Dec. 6.10.76, D.R. 7 p. 115 and Application No. 8744/79, Dec. 2.3.83, D.R. 32 p. 141).           The Commission has accordingly looked at the proceedings as a whole on the basis of the applicants' submissions.   The Commission however finds that an examination of the proceedings as a whole fails to disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission recalls in particular that the applicants were able to submit their complaints, alleging that the judge was biased and misdirected the jury, to the Court of Appeal, which however found their grounds of appeal did not justify giving them leave to appeal.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicants also complain of a violation of Article 6 para. 2 (Art. 6-2) of the Convention, which guarantees that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.           The Commission has examined the facts as submitted by the applicants but finds that the applicants have failed to establish that the principle of the presumption of innocence was not respected in their case.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants also complain of a violation of Article 5 paras. 1 (a) and 4 (Art. 5-1-a, 5-4) of the Convention.   These provide:           "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 ... ".           "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."           The Commission has examined the facts as submitted by the applicants but finds that the applicants have failed to establish that they were not lawfully convicted by a competent court within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.           This finding does not however dispense the Commission from proceeding to examine whether there has been a violation of paragraph 4, which is a separate provision.   The Commission recalls first of all that where a decision depriving a person of liberty is made by a court at the close of judicial proceedings, the supervision required by Article 5 para. 4 (Art. 5-4) is incorporated in the decision.   This is so, as in the present case, where a sentence of imprisonment is pronounced after "conviction by a competent court" (see e.g.   Eur.   Court H.R., De Wilde, Ooms and Versyp judgment of 18 November 1970, Series A no. 11).   The Commission further recalls that the applicants were also able to challenge the lawfulness of their detention by submitting an application in writing for habeas corpus to the High Court, which on a preliminary examination found no grounds to direct that the applicants be allowed to appear in person to present their application or that they should be given the assistance of the Official Solicitor.   In the light of these circumstances, the Commission finds no appearance of a violation of Article 5 para. 4 (Art. 5-4) of the Convention.           The Commission accordingly finds no appearance of a violation of Article 5 paras. 1 or 4 (Art. 5-1, 5-4) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicants also complain of a violation of Article 8 (Art. 8) of the Convention in that their family life has been destroyed by their imprisonment.   They also complain that their mail has been subject to censorship and that considerable amounts of their mail have gone missing.           Article 8 para. 1 (Art. 8-1) of the Convention provides that:           "Everyone has the right to respect for his private         and family life, his home and his correspondence."           Insofar as the applicants complain of the disruption of the family life, the Commission recalls that the separation of detained persons from their families and the hardship resulting from it are inevitable consequences of lawful imprisonment.   The Commission accordingly finds no appearance of a violation of Article 8 (Art. 8) of the Convention in this respect.           Insofar as the applicants complain of censorship of their mail, the Commission refers to its constant case-law in which it has held that the opening and reading of letters by the prison is not contrary to Article 8 (Art. 8) of the Convention (see e.g.   Application Nos. 2375, Dec. 7.2.67, Coll. 22 p. 45 and 4351/70, Dec. 5.10.70, Coll. 36 p. 83).           The applicants also complain that considerable amounts of their mail have gone missing.   The Commission recalls however that Article 8 (Art. 8) of the Commission does not guarantee the perfect functioning of the postal system and the applicants have failed to establish that there has been any positive official interference with the mail in question.           It follows that these complaints are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       The applicants also complain of discrimination contrary to Article 14 (Art. 14) of the Convention.           The Commission has examined the applicants' complaint as submitted by them but finds that it falls to disclose any appearance of a violation of Article 14 (Art. 14) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.       The Commission finally notes the applicants' complaint that their correspondence to the Commission has been opened by the prison authorities but does not find on the facts of the present case any indication that there has been a hindrance in the applicants' effective exercise of their right to lodge a complaint before the Commission contrary to the last sentence of Article 25 (Art. 25) of the Convention.           For these reasons, the Commission           1.    DECLARES THE APPLICATION INADMISSIBLE;           2.    DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE              ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE              RIGHT OF INDIVIDUAL PETITION.             Secretary to the Commission         President of the Commission                   (H.C. KRÜGER)                       (C.A. NØRGAARD)