CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1992

.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. 17441/90                       by Anne-Marie O'NEILL                       against the United Kingdom           The European Commission of Human Rights sitting in private on 4 September 1992, 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            Mrs.   G. H. THUNE            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                    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 10 September 1990 by Anne-Marie O'NEILL against the United Kingdom and registered on 19 November 1990 under file No. 17441/90;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the written observations submitted by the respondent Government       on 15 October 1991 and the observations in reply submitted by the       applicant on 31 January 1992;       -      the parties' oral submissions at the hearing on 4 September 1992;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a British citizen born in 1969 and resident in Belfast.   The applicant is a single parent with custody of her two children, twin girls, whose date of birth is 13 September 1988.         She is represented before the Commission by Ms. M. Sheehan, a Solicitor with Messrs. Nurse & Jones, Solicitors, Belfast.         The facts of the present case, as submitted by the parties, may be summarised as follows:         On 18 June 1990 the applicant took up occupation of the house where she now lives.   At 07.10 hours on 26 June 1990, two police officers, accompanied by an army search team, undertook a search of the applicant's house.   The statutory authority for the search was section 15(2) of the Northern Ireland (Emergency Provisions) Act 1978, and the search was authorised by a Chief Inspector of the Royal Ulster Constabulary (RUC).   The Government stated that the search was carried out because it was suspected that there were munitions unlawfully on the premises.   The reason it was believed that there were munitions on the premises was because the RUC had received information from a reliable source that a prisoner, who had failed to return to Magillagan Prison after a 48 hour parole and while serving a four year prison sentence for armed burglary and who was suspected of being involved in acts of terrorism, was staying at the premises with his estranged wife and using them to conceal munitions.         The applicant stated that she was asked if she was Mrs. W (Mr. and Mrs. W were the previous occupants of the house).   She gave her name and explained that she was living alone in the house with her baby daughters who were asleep in their cots upstairs.   The applicant was asked if there were any men living in the house and she said that there were not. The applicant was told by the police that they had a warrant for Mr. W.   She explained that Mr. W no longer lived in the house. However the police officer who appeared to be in charge told her to take her children from their cots because they were going to carry out the search anyway.   The applicant alleged that she was not shown any warrant and was not given any further reasons for the search.   The Government denied this, stating that the applicant was shown the authorisation for the search signed by the Chief Inspector and was told why the search was taking place.   A police officer accompanied the applicant upstairs and she took her children from their cots. When she came downstairs again about ten uniformed soldiers were in the house and had started the search.   They had a bag of tools with them.         The applicant stated that she was extremely distressed and frightened by what was going on.   She asked the police officer who remained in the house if she could telephone her mother.   The police officer refused to let the applicant do so.   There was no telephone in the house and so acceding to this request would have meant permitting the applicant to leave the premises before the search had been completed.           The applicant was not arrested.   Although she was required to remain on the premises during the search in the exercise of powers conferred by section 21(2) of the Prevention of Terrorism (Temporary Provisions) Act 1989, she was informed that she could go anywhere in the house provided that she did not hinder the progress of the search. In practice, this meant that she had access at any particular time to any room in the house other than the one which was being searched.         The applicant stated that she was refused access to the kitchen to prepare breakfast for her children until the search of the kitchen had been completed at approximately 09.30 hours.   According to the Government this was because the kitchen was the first room to be searched so as to allow breakfast to be prepared as early as possible. The search of the kitchen was however completed at 08.40 hours at which time the applicant was permitted access there.         The applicant also asserted that her mother and father came to the house and that her mother wanted to join her but was refused entry and that a request to allow the applicant's children to leave with the applicant's mother was refused.   According to the Government, although a woman, who was never identified by those carrying out the search as the applicant's mother, called at the house during the search she did not request to enter and no request was ever made that the applicant's children be permitted to leave the premises with her.   The Government stated that, bearing in mind that the applicant's children were under the age of two years at the time of the search, such a request would, if it had been made, almost certainly have been granted.         Each room in the house was searched systematically by the search party and the applicant alleged that she was confined in a restricted area within the house depending on where the search party was operating.   In the kitchen the search party ripped the new floor covering and drilled holes in the floor.   They also dug up the floor in the living room.   They bored holes in the walls and in the stairs. Furniture was damaged and carpets were pulled up.         The applicant made no complaint during the search and subsequently signed the police search record to the effect that she had no complaint to make.         The search terminated at 10.45 hours on the same day.   The search therefore lasted a total of three hours and 35 minutes.   Nothing was taken by the search team.   The extent of the damage caused to the applicant's property was recorded in a Search Damage Report Form which the applicant signed.   A civil representative visited the applicant on 27 June 1991, the day after the search, and on 28 June 1991 recommended that a payment of £414 be made to the applicant by way of compensation under section 28 of the Northern Ireland (Emergency Provisions) Act 1978 for the damage caused.   The applicant agreed to accept the amount in question as a full and final settlement of her claim for compensation for the damage caused and payment was approved by the Northern Ireland Office on 20 July 1991.         On 3 June 1991 the applicant instituted civil proceedings against the Chief Constable of the Royal Ulster Constabulary and the Ministry of Defence in the Northern Ireland High Court:           "The plaintiff's claim is for damages including aggravated and       exemplary damages for personal injuries, mental anxiety and       distress, physical discomfort and inconvenience, loss and damage       sustained by reason of the assault, battery, false imprisonment,       breach of duty, negligence, nuisance, trespass to goods, trespass       to the person and trespass to land by the defendants, their       respective servants and agents and each of them in and about the       conduct, supervision and control of security operations and in       and about the entry onto and search of the plaintiff's premises."         A hearing in the case is not expected for several months yet. The applicant is in receipt of legal aid for these proceedings.     COMPLAINTS         The applicant alleged that all the five paragraphs of Article 5 of the Convention were violated, as well as Article 8 of the Convention.         The applicant stated that Article 5 para. 1 of the Convention was violated in that she was deprived of her liberty by a de facto arrest, even though she was not formally told that she was under arrest, and that she was thereafter detained against her will for a specified period.   The applicant maintained that none of the justifiable circumstances set out in Article 5 para. 1 of the Convention applied in her case.         The applicant invoked Article 5 para. 2 of the Convention on the basis that she was not informed either properly, or at all, of the reasons for her arrest or of any charge against her.         The applicant further alleged a violation of Article 5 para. 3 of the Convention in that she was not brought promptly, or at all, before a judge or other officer authorised by law to exercise judicial power. She also invoked Article 5 para. 4 of the Convention on the ground that she was denied access to a solicitor and was thereby denied an opportunity to take proceedings by which the lawfulness of her detention could be decided speedily by a court.         She further complained of a breach of Article 5 para. 5 of the Convention in that she does not have an enforceable right to compensation because in the domestic law of Northern Ireland the provisions of section 15 of the Northern Ireland (Emergency Provisions) Act 1978, as amended by section 21 (2) of the Prevention of Terrorism (Temporary Provisions) Act 1989, confer powers upon soldiers and police officers to require persons to remain in, or in a specified part of, a house which is being searched, or to refrain from entering a specified part of it and to prevent any person who is not resident in the house from entering it.         Finally, the applicant alleged that Article 8 of the Convention was violated in that the conduct complained of constituted an unjustified interference with her right to respect for her private and family life and her home.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 September 1990 and registered on 19 November 1990.         After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 2 July 1991.   It decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit their written observations on admissibility and merits.   The Government's observations were submitted on 15 October 1991, to which the applicant replied on 31 January 1992 after a one month extension of the time limit fixed for that purpose.   The President of the Commission had granted the applicant legal aid on 29 October 1991.         On 18 May 1992 the Commission decided to hold a hearing of the application on the same day as a similar case of Kelly v. the United Kingdom, application No. 17711/91.   The hearing was held on 4 September 1992.   The applicant, who attended, was represented by Mr. B. Macdonald, BL, Counsel, and Ms. M. Sheehan, Solicitor, Messrs. Nurse and Jones.   The Government were represented by their Agent, Mr. H. Llewellyn, Mr. N. Bratza, QC, Counsel, Mr. R. Weatherup, Counsel, and three advisers.     THE LAW         The applicant complained that various aspects of her right to liberty and security of person ensured by Article 5 (Art. 5) of the Convention were violated, as well as her right under Article 8 (Art. 8) of the Convention to respect for private and family life and her home, when the police and army searched her house on 26 June 1990. She alleged, inter alia, that keeping her on the premises during the search with her two daughters, even though there was no formal arrest, constituted an unjustifiable deprivation of her liberty which did not fall within any of the categories of lawful detention in Article 5 para. 1 (Art. 5-1) of the Convention.         The Government refuted the applicant's claims.   They first submitted that the applicant has not exhausted domestic remedies as is required by Article 26 (Art. 26) of the Convention.   The treatment of which the applicant now complains before the domestic courts is the same of which complaint has been made to the Commission.   Before the Northern Ireland High Court the applicant contends that, as a matter of domestic law, her treatment was unlawful, arbitrary, oppressive and unconstitutional, and she claims aggravated and exemplary damages.   If the applicant is successful in these claims she will cease to be a victim for the purposes of the Convention.   Her domestic court claims cannot be wholly without reasonable prospects of success otherwise she would not have been granted legal aid.   The substance of the wrong alleged before the Commission could be remedied by the domestic courts, if well-founded.   It is therefore irrelevant that the Convention does not form part of United Kingdom law.           The applicant contended that there is no domestic remedy capable of providing redress for her complaints because section 21 of the Prevention of Terrorism (Temporary Provision) Act 1989 expressly authorises conduct in breach of the Convention.   The powers of the domestic courts in a claim for damages are limited to deciding whether there has been compliance with section 21, not whether there has been a breach of the Convention, which does not form part of domestic law. Each year there are hundreds of searches of the kind in question, most of which prove fruitless, yet the applicant believes that there has not been a single reported decision in a Northern Ireland court in which such a search or detention has been found unlawful.   In any event, even if she herself succeeds in her claim and is awarded damages, this would still not constitute an effective remedy because the conduct of which complaint is made is authorised by law and is an administrative practice (Nos 5577-5583/72, Donnelly and six others v. the United Kingdom, Dec. 15.12.75, D.R. 4 p. 4).   The applicant noted that the Government had not raised the question of exhaustion of domestic remedies until a week before the hearing in the case before the Commission.   She considered that they could not do so at such a late stage.   The Government's earlier silence was, in her view, implicit acceptance that no effective domestic remedy was available to her.         The Government also contended that, in any event, the applicant had not been deprived of her liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention, or, if she had, the measures taken were "in accordance with a procedure prescribed by law" and constituted "the lawful arrest or detention of a person ... to secure the fulfilment of an obligation prescribed by law", within the meaning of Article 5 para. 1 (b) (Art. 5-1-b) the Convention.   That obligation was created by section 21 of the Prevention of Terrorism (Temporary Provisions) Act 1989, ie an obligation to assist and not obstruct the search for munitions.   Furthermore any interference with the applicant's rights under Article 8 (Art. 8) of the Convention was, in their view, necessary in a democratic society in the interests of national security, public safety and the prevention of disorder or crime, within the meaning of the second paragraph of Article 8 (Art. 8).         The Commission must first examine whether the applicant has exhausted domestic remedies in compliance with Article 26 (Art. 26) of the Convention.         The Commission notes that while the applicant had indicated in her application that she intended to bring domestic proceedings for damages, she did not inform the Commission of the developments in her case when she went ahead and instituted civil proceedings before the Northern Ireland High Court against the Chief Constable of the Royal Ulster Constabulary and the Ministry of Defence.   Moreover these matters, inexplicably, did not come to the attention of the Government until shortly before the Commission's hearing in the present case when their objection under Article 26 (Art. 26) of the Convention was raised for the first time.   However, Article 26 (Art. 26) of the Convention precludes the Commission from dealing with any case where domestic remedies have not been exhausted, and the Government cannot be estopped from raising such a preliminary objection at any time prior to the Commission's decision on the admissibility of the case.           Part of the task of the Convention organs in an examination of complaints under Articles 5 and 8 (Art. 5, 8) of the Convention is to determine whether the measures complained of by the applicant were lawful, or in accordance with the law.   This is a reference principally to the domestic law.   The Commission notes that in her claim before the domestic courts the applicant is alleging that the search of her house on 26 June 1990 and the restrictions on her movements during the search were unlawful under domestic law (p. 5 above statement of claim).   The Commission cannot find it established that her claim is devoid of any prospects of success.   If the applicant's claim were to succeed before the domestic courts, her Convention complaints would be wholly or partly vindicated, which would affect her status as a victim under Article 25 (Art. 25) of the Convention.         The Commission cannot examine the present case as if section 21 of the Prevention of Terrorism (Temporary Provisions) Act 1989 authorised the treatment while the applicant is complaining about the same treatment before the domestic courts.   The very purpose of Article 26 (Art. 26) of the Convention is to provide the High Contracting Party with an opportunity to remedy complaints of a breach of the Convention in form or in substance, if well-founded.   Accordingly it would be premature for the Commission to deal with the applicant's case before the domestic courts have determined her civil claims.         In the circumstances of the present case the Commission concludes that the applicant has not yet exhausted the remedies available to her under the law of Northern Ireland, in accordance with Article 26 (Art. 26) of the Convention.         It follows that the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission            (H.C. KRÜGER)                       (C.A. NØRGAARD)