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. 17711/91                     by Gerard KELLY                     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 14 December 1990 by Gerard KELLY against the United Kingdom and registered on 23 January 1991 under file No. 17711/91;        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 30 October 1991 and the observations in reply                submitted by the applicant on 20 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 1957 and resident in Belfast.        He is represented before the Commission by Mr. Francis Keenan, Solicitor, Belfast.        The facts of the present case, as submitted by the parties, may be summarised as follows:        At 14.50 hours on 27 August 1990, two police officers of the Royal Ulster Constabulary stopped a BMW motor vehicle, registration no. LIB 1256, driven by the applicant's brother on the Sprucefield Interchange of the M1 motorway.   The applicant and two other persons were passengers in the vehicle.   The Government stated that the reason the vehicle was initially stopped was because it appeared to be overladen at the rear and information provided by a support vehicle revealed that the vehicle was believed to have been used in terrorist incidents. The applicant denied that the car appeared overladen except in so far as it was weighed down by the two male passengers in the back seat.   He also disputed that the vehicle was believed to have been used in terrorist incidents or that such information was provided by a support vehicle.        The Government further stated that the police officer who stopped the car recognised two of the passengers, one of whom was the applicant, from that officer's previous service in West Belfast.   (The officer in question was aware that the applicant had previously been convicted of possessing explosives with intent to endanger life and of possessing explosives in suspicious circumstances for which he was sentenced to nine years imprisonment on 11 March 1982.   He was released on 18 October 1985.)   Not being satisfied with the explanation given by the occupants of the vehicle as to why it was overladen at the rear, the police officers briefly searched the vehicle by the roadside and then, with the assistance of a support vehicle, escorted it to the Maze Prison for a more thorough examination.   The occupants of the car were informed that they were being required to accompany their vehicle to the designated search area at the Maze Prison in the exercise of powers under section 21 of the Prevention of Terrorism (Temporary Provisions) Act 1989.   The escorted vehicle arrived at the Maze Prison at 15.20 hours and the vehicle and occupants were taken to the designated search area by military personnel.        The applicant and the other occupants of the car were required to remain at the Maze Prison during the search of the vehicle.   The applicant alleged that during this time he was refused permission to go to the toilet.   The Government denied this.   They stated that he was allowed to go to the toilet as soon as his details had been recorded which was approximately two to three minutes after he made his request.   The applicant also asked to see a solicitor.   He was informed that he was not under arrest, that his detention was merely a temporary precaution while his vehicle was being searched and that he could contact a solicitor on completion of the search which was being carried out as expeditiously as possible.          The search of the vehicle terminated at 17.48 hours and the applicant and the other occupants of the vehicle were then informed that they were free to leave.   They refused to do so and made allegations that their vehicle had been damaged during the search.   The Government stated that no damage was caused to the vehicle or to its contents during the search and neither the applicant nor any of the other occupants of the car made any claim for compensation for damage as they were entitled to do under section 28 of the Northern Ireland (Emergency Provisions) Act 1978.   The applicant and the other occupants of the car eventually left with the vehicle at approximately 18.30 hours.   The total length of time, however, from when the vehicle was stopped at the roadside to when the occupants were told that they were free to go was just under three hours.        The Government said that although an electronic vapour detector found positive evidence of traces of explosive type substances inside the boot and passenger compartment of the vehicle, these were not considered sufficient to justify any charges being brought.   The applicant disputed that any traces of explosive substances were found.   It was not suggested at the time and no questions were asked about such substances.        On 11 September 1991 the applicant instituted civil proceedings against the Ministry of Defence in the Belfast County Court:        "the plaintiff's claim (is) for £5000 damages including      aggravated and exemplary damages for personal injuries,      physical discomfort and inconvenience, mental anxiety and      distress, deprivation of liberty, loss and damage caused by      reason of the assault, battery, false imprisonment,      trespass to the person, nuisance and breach of duty of the      defendants, their respective servants and agents and police      officers under their direction and control in and about the      conduct of soldiers and police officers and in and about      the arrest and detention of the plaintiff on or about 27      August 1990 at or near M1 motorway and the Maze Search      Centre."        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 complained that all the five paragraphs of Article 5 of the Convention have been violated in his case.        The applicant alleged that Article 5 para. 1 of the Convention was violated as he was deprived of his liberty in that he was, in fact, arrested by police officers even though they did not formally tell him that he was under arrest, and he was thereafter detained against his will for the specified period. The applicant maintained that the measures taken by the police officers and soldiers were not justified under paragraph 1 of Article 5 of the Convention.   He alleged that Article 5 para. 2 of the Convention was violated in that he was not informed properly, or at all, of the reasons for his arrest or of any charge against him.   He further alleged that Article 5 para. 3 of the Convention was violated in that he was not brought promptly, or at all,   before a judge or other officer authorised by law to exercise judicial power.   The applicant complained that Article 5 para. 4 was breached as he was denied access to a solicitor and consequently denied an opportunity to take proceedings whereby the lawfulness of his detention could be decided speedily by a court.   Finally, the applicant complained that he suffered a violation of Article 5 para. 5 of the Convention in that he did not have any enforceable right to compensation because the provisions of sections 15 and 20 of the Northern Ireland (Emergency Provisions) Act 1978 and section 21 of the Prevention of Terrorism (Temporary Provisions) Act 1989 confer powers on soldiers and police to stop, detain and search vehicles and their occupants and to require the occupants to go to and remain at any place to where the vehicle is removed for the purpose of a search.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 14 December 1990 and registered on 23 January 1991.        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 30 October 1991, after a one week extension of the time limit fixed for this purpose.   The applicant replied on 20 January 1992, after a one month extension of the time limit, legal aid having been granted to the applicant by the Commission on 13 December 1991.        On 18 May 1992 the Commission decided to hold a hearing of the application on the same day as a similar case of O'Neill v. the United Kingdom, application No. 17441/90.   The hearing was held on 4 September 1992.   The applicant, who attended, was represented by Mr. B. Macdonald, BL, Counsel, Mr. F. Keenan and Ms. C. Diamond, Solicitors, Messrs. Francis Keenan.   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 his right to liberty and security of person ensured by Article 5 (Art. 5) of the Convention were violated, when the police and army searched the car in which he was travelling on 27 August 1990. He alleged, inter alia, that making him wait in the Maze prison during the search of the vehicle, even though there was no formal arrest, constituted an unjustifiable deprivation of his liberty which did not fall within any of the categories of lawful detention in Article 5 para. 1 (Art. 5-1).        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 Belfast County Court the applicant contends that, as a matter of domestic law, his treatment was unlawful, arbitrary, oppressive and unconstitutional, and he claims aggravated and exemplary damages.   If the applicant is successful in these claims he will cease to be a victim for the purposes of the Convention.   His domestic court claims cannot be wholly without reasonable prospects of success otherwise he 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 his 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 he himself succeeds in his 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.   He considered that they could not do so at such a late stage.   The Government's earlier silence was, in his view, implicit acceptance that no effective domestic remedy was available to him.        The Government also contended that, in any event, the applicant had not been deprived of his liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention, or, if he 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 such measures were justified under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, being lawful detention, in accordance with a procedure prescribed by law, effected for the purpose of bringing the applicant before the competent legal authority on reasonable suspicion of having committed an offence.        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 the applicant did not inform the Commission of the developments in his case when he instituted civil proceedings before the Belfast County Court against 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 Article 5 (Art. 5) of the Convention is to determine whether the measures complained of by the applicant were lawful.   This is a reference principally to the domestic law.   The Commission notes that in his claim before the domestic courts the applicant is alleging that the restrictions on his movements during the search of his brother's car were unlawful under domestic law (p. 4 above statement of claim).   The Commission cannot find it established that the claim is devoid of any prospects of success.   If the applicant's claim were to succeed before the domestic courts, his Convention complaints would be wholly or partly vindicated, which would affect his 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 his civil claims.        In the circumstances of the present case the Commission concludes that the applicant has not yet exhausted the remedies available to him 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)