CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1989

.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. 13004/87 by Robert John WILSON and Others against the United Kingdom             The European Commission of Human Rights sitting in private on 13 April 1989, the following members being present:                   MM.   S. TRECHSEL, Acting President                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      H.G. SCHERMERS                      H. DANELIUS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   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 20 June 1985 by Robert John WILSON and Others against the United Kingdom and registered on 11 June 1987 under file No. 13004/87;           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 12 applicants are British citizens resident in Belfast (see Appendix).   They are represented by Mr.   Monteith, a solicitor practising in Portadown, County Armagh and by Mr.   Joseph Rice, a solicitor practising in Belfast.   The facts as submitted by the applicants may be summarised as follows.           All the applicants were arrested between May 1982 and November 1982.   The ninth and eleventh applicants were released on bail, while the others were remanded in custody.           The first, second and sixth applicants were subjected to a different prison regime than the others, being transferred to A3, a special security wing of H.M. Prison Belfast.   While detained in A3 wing they were moved to different cells on a regular 7/10 basis and subjected to continuous observation by prison staff.   Save during limited exercise periods, they were accompanied by a prison officer on leaving their cell, including visits to the toilets.   After the lock-up at 7.00 p.m., the applicants were observed on a 15-30 minute basis by an officer through the cell-view window.   The observation continued after lights out at 10.00 p.m. and the cell light was usually put on, causing the applicants difficulty in sleeping.           These applicants were also subjected to more intensive searches.   They allege that they were searched up to four times per day, with approximately eight strip searches per week.   Though these applicants were allowed normal prison visits, they were still kept under close observation with the result that conversation could rarely be private.           During his detention on remand at H.M. Prison, Belfast, the first applicant began to attend education classes for English language and French in A1 wing.   However, after several weeks, these classes were stopped.   The first applicant was told that he could not leave A3 wing and that no teaching facilities could be provided in this area. Though he was offered books to study English, the applicant refused taking the view that they would be useless without the classes.   After 24 December 1984 however, teaching facilities were made available.           A Preliminary Enquiry was held at Belfast Magistrates Court in December 1982 and all the applicants were committed for trial in Belfast Crown Court.   The applicants were charged with "Scheduled Offences" under the Northern Ireland (Emergency Provisions) Act 1978. By section 7 (1) of this Act, trial of such offences was to be conducted by a court without a jury.           The trial took place from 16 February to 18 March 1983 before Mr.   Justice Murray.   The prosecution case rested largely on the evidence of an accomplice or "supergrass" who had been given immunity from prosecution.   The applicants were represented by their solicitors and senior and junior counsel.           The trial judge gave his written judgment on 11 April 1983 and convicted all the applicants.   The applicants were sentenced to terms of imprisonment.           The applicants appealed.   Following a hearing in September 1984, the Court of Appeal in its judgment of 24 December 1984 quashed all the convictions and acquitted them of all the charges against them.         The first applicant however was again remanded in custody following a further charge on the word of another informer.   He obtained bail from the High Court on 15 February 1985 and soon afterwards the informer withdrew his statements and the charges were dropped.           The third applicant was also remanded in custody again from 24 December 1984 on the word of an informer.   He was acquitted however on 22 February 1985.     COMPLAINTS   1.       The applicants complain that they were deprived of their liberty contrary to Article 5 para. 1 of the Convention.   They submit that there was no lawful detention after conviction by a competent court.   They submit that Mr.   Justice Murray was a chancery judge inexperienced in criminal law and that he has been found by the Court of Appeal to have repeatedly erred in cases which he has tried.   They also invoke Article 5 para. 5 in relation to their detention.   2.       The applicants also complain that because of Mr.   Justice Murray's incompetence they did not receive a fair hearing contrary to Article 6 para. 1 of the Convention.   They also allege that the evidence against them was provided almost entirely by an accomplice Joseph Charles Bennett, who had been given immunity from prosecution by the Crown and this also deprived them of a fair hearing.           They further submit that since the applicants were unable to give immunity to witnesses for the defence in case they incriminated themselves they were unable to secure the attendance and examination of witnesses on an equal footing.   They invoke Article 6 para. 3 (d) in this respect.   3.       The first, second, third and sixth applicants also complain of a violation of Article 3 of the Convention in relation to their conditions of detention on remand.   These conditions caused a deterioration in health, in particular of the first applicant who still suffers from a bowel disorder.   They also complain of a violation of Article 14 in that they were treated more harshly than other remand prisoners.   4.       The first applicant also complains of a breach of Article 10 of the Convention in that he was refused educational facilities.   THE LAW   1.       The applicants allege that they were deprived of their liberty contrary to Article 5 para. 1 (Art. 5-1) of the Convention, which provides:           "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;"           They submit that their detention falls outside the scope of the exception set out in sub-para. 1 (a), the trial judge who convicted them was so inexperienced and prone to error that he did not constitute a "competent court" within the meaning of that provision.           The Commission first observes that the applicants' complaint relates to their detention after the Crown Court's judgment of 11 April 1983.   The term "competent court" in Article 5 para. 1 (a) (Art. 5-1-a) does not refer to the personal abilities of the judge or judges that constitute it but to its legal authority and jurisdiction.   There is no indication that the court in the present case was not legally constituted or that it was acting outside its jurisdiction.   The Commission finds that the applicants' detention after the judgment of 11 April 1983 was a "lawful detention ... after conviction by a competent court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a). The Commission also refers to its previous case-law to the effect that the setting aside of a conviction by an appeal court on the basis of errors committed by the court of first instance does not retroactively affect the lawfulness of the detention following that conviction (see e.g.   Krzycki v. the Federal Republic of Germany, Comm.   Rep. 9.3.78, D.R. 13 p. 57).           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The appplicants also invoke Article 5 para. 5 (Art. 5-5) of the Convention, which provides that:           "Everyone who has been the victim of arrest or detention in         contravention of the provisions of this Article shall have         an enforceable right to compensation."           This provision is only applicable where there is a violation of Article 5 paras. 1 to 4 (Art. 5-1-3-4).   The Commission has found no appearance of a violation of these provisions in this case. Accordingly, the Commission finds that the applicants have no right of compensation under Article 5 para. 5 (Art. 5-5) of the Convention (see e.g.   No. 2950/77, Dec. 4.3.80, D.R. 19 p. 213).           It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants also complain that they did not receive a fair hearing contrary to Article 6 para. 1 (Art. 6-1) because of the incompetence of the trial judge and of the evidence given against them by an accomplice who had been granted immunity.   They also complain of a violation of Article 6 para. 3 (d) (Art. 6-3-d) since defence witnesses could not invoke the same immunity in relation to their testimony.           Article 6 para. 1 (Art. 6-1) first sentence provides:           "In the determination of his civil rights and obligations         or 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."           Article 6 para. 3 (d) (Art. 6-3-d) provides:           3.   Everyone charged with a criminal offence has the         following minimum rights:           ...           (d) to examine or have examined witnesses against him         and to obtain the attendance and examination of witnesses         on his behalf under the same conditions as witnesses         against him ..."           The Commission recalls that the applicants were convicted on 11 April 1983 on the basis largely of the evidence of an accomplice, who had been given immunity.   The Court of Appeal however on 24 December 1984 quashed these convictions and acquitted the applicants of all charges against them.   In these circumstances the Commission is of the opinion that any defects which may have existed at the time of the applicants' trial must be considered to have been rectified by the decision of the Court of Appeal (see e.g.   No. 8083/77, Dec. 13.3.80, D.R. 19 p. 223).   Consequently, the applicants can no longer claim to be victims of a violation of Article 6 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 first, second, third and sixth applicants also complain of a violation of Article 3 (Art. 3) of the Convention in respect of the conditions of their detention in remand.   They also complain of discrimination contrary to Article 14 (Art. 14) of the Convention in being treated more harshly than other prisoners held on remand.           Article 3 (Art. 3) of the Convention provides:           "No one shall be subjected to torture or to inhuman or         degrading treatment or punishment."           Article 14 (Art. 14) of the Convention provides:           "The enjoyment of the rights and freedoms set forth in         this Convention shall be secured without discrimination         on any ground such as sex, race, colour, language,         religion, political or other opinion, national or social         origin, association with a national minority, property,         birth or other status."           The case-law of the Commission and the Court establishes that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3 (Art. 3) of the Convention (see e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 15, para. 162).   The Commission has examined the applicants' complaints concerning the conditions of their detention but finds that, although the regime of detention subjected them to more rigorous surveillance than other prisoners, it has not been established that the applicants thereby suffered any treatment such as to infringe Article 3 (Art. 3) of the Convention.           As regards the applicants' complaints under Article 14 (Art. 14), this provision protects from discrimination in the enjoyment of rights and freedoms guaranteed under the Convention.   The Commission has found above that the applicants have failed to establish that their conditions of detention infringed the requirements of Article 3 (Art. 3) of the Convention.   The Commission considers that Article 3 (Art. 3) is an absolute right.   If complaints attain the level of severity prohibited by Article 3 (Art. 3) there is a violation:   if not, there is no violation and Article 3 (Art. 3) can have no application.   It does not therefore fall to be considered in conjunction with Article 14 (Art. 14+3) 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.   5.       The first applicant also complains of a breach of Article 10 (Art. 10) of the Convention in that he was refused educational facilities.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant has failed to show that he petitioned the Secretary of State concerning this complaint and has, therefore, not exhausted the remedies available to him under the United Kingdom law.   Moreover, an examination of the case 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 exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this complaint must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          Acting President of the Commission                (H.C. KRÜGER)                          (S. TRECHSEL)   APPENDIX             1.       Robert John Wilson (aged 43)   2.       Robert Hugh Seymour (aged 34)   3.       John Graham (aged 43)   4.       John Smith Douglas (aged 44)   5.       James Irvine (aged 44)   6.       Brian Thomas Halliday (aged 27)   7.       Garrett Nesbitt (aged 47)   8.       Thomas Evans (aged 34)   9.       Norman Houston (aged 57)   10.      Samuel Austin (aged 45)   11.      John Hewitt (aged 47)   12.      Norman Large