CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 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. 18077/91                        by German BUITRAGO MONTES                          and Jorge PEREZ LOPEZ                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 2 December 1992, the following members being present:                MM.    J.A. FROWEIN, President of the First Chamber                  E. BUSUTTIL            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary a.i. to the First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 May 1990 by German BUITRAGO MONTES and Jorge PEREZ LOPEZ against the United Kingdom and registered on 12 April 1991 under file No. 18077/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         Both applicants are Colombian nationals, born in 1935 and 1948 respectively. The first applicant is a real estate agent and the second applicant is a fishing engineer.   At the time of introducing their application, they were serving prison sentences in Perth Prison, Scotland.         The facts, as submitted by the applicants, may be summarised as follows.         On 18 April 1988, the applicants arrived at Glasgow Airport, where they were subjected to a strip-search by customs officers, who photocopied their identity papers, flight tickets and an address book. Although their papers were in order and no dutiable goods were found in their possession, the applicants were subjected to a surveillance operation ("Operation Clyde") on suspicion of drug trafficking.   They state that during their stay in a hotel in Greenock customs officers consequently listened to their private conversations, intercepted their telephone calls and secretly searched their hotel room.         On 22 April 1988, at 7.38 am, the applicants were arrested in a hotel in Tynemouth (England) by a number of customs officers, who searched the room, including the applicants' luggage, and confiscated their personal documents and money.   At 9.55 am, the applicants were handed over to the English police at a police station, where they were detained and questioned through interpreters. At 9.30 am the following day, the applicants were handed back to customs officers, who took them to Greenock and handed them over to the Scottish police at 12.45 pm. The applicants were charged at 1.54 pm and 2.06 pm respectively with various drugs offences, and at 10.15 am on 25 April they appeared before the Sheriff, who remanded them in custody. While awaiting trial, the applicants were detained in Barlinnie Prison, Glasgow.         The trial of the applicants and four co-accused took place before the High Court of Justiciary, sitting in Greenock, between 1 August and 2 September 1988. The applicants were legally aided, and there was interpretation.   The defence objected to certain evidence obtained at the time of the first search but the objection was dismissed, the court finding that the customs officers were clearly entitled to make the search. In his charge to the jury the trial judge required the jury inter alia to address the question of whether the Crown had established that the applicants were connected with the importation of illegal drugs from a vessel - the "San Vicente" - which had berthed in the Port of Strathclyde in Greenock on 10 April 1988 and where such drugs (cocaine) had been found. The applicants were convicted by majority verdicts on two of the four charges against them, namely being knowingly involved in the evasion of a prohibition on importation of cocaine and being concerned in the supplying of cocaine. Each of the applicants was sentenced to 12 years' and 8 years' imprisonment, to run consecutively.         The applicants complained to the procurator fiscal about the alleged perjury of certain witnesses, but no action was taken in this respect.         The applicants also lodged appeals against both conviction and sentence on 30 September 1988. A note of grounds of appeal drafted by their solicitors was attached. Further notes of appeal were submitted by counsel in March and April 1989. The applicants contended that there was insufficient evidence to uphold their convictions, that the trial judge had misdirected the jury and that the sentences imposed on them were excessive, given various their previous good character, their family circumstances, the first accused's state of health and the favourable terms of social inquiry reports. The applicants obtained legal aid for their appeals, although the Scottish Legal Aid Board refused to cover the costs of obtaining a Spanish translation of the trial judge's charge to the jury and a transcript of the trial, considering the expense involved to be unacceptable. No transcript of the trial is in fact made unless ordered by the appeal court.         At a hearing on 4 May 1989, the High Court of Justiciary, sitting as a Court of Criminal Appeal and composed of three judges, remitted the appeal to the trial judge for a supplementary report, which was submitted in August 1989.   The applicants state that they were unable to obtain a translation of this report.   At the final appeal hearing, on 5 April 1990, the Court of Criminal Appeal accepted that the trial judge had misdirected the jury in directing that the confession of one of the co-accused and the personal opinion of a police officer as to where cocaine originated from were evidence which the jury could take into account. However, the Court found that there was ample other evidence to uphold the applicants' conviction, namely that they had been in contact with other co-accused who were later caught in possession of cocaine, and with crew members of the vessel where cocaine was also found. Both applicants had also been seen at the docks near the said vessel and the second applicant on board. Consequently, the Court of Criminal Appeal dismissed the applicants' appeals against conviction, considering that there had been no miscarriage of justice. On 13 July 1990, the Court also dismissed the appeals against sentence.         The applicants have since 30 August 1990 been classified as "strict escape A" category and are consequently denied access to a telephone.         On 5 May 1991, the applicants petitioned the Secretary of State for Scotland with a request to recommend exercise of the Royal Prerogative of Mercy, basing their request both on a miscarriage of justice and on humanitarian grounds. The petition was rejected on 12 July 1991.   COMPLAINTS         The applicants complain that they were subjected to degrading intimate searches without any medical supervision, first at Glasgow Airport and later in their hotel in Tynemouth, for no reason other than their nationality. The applicants further complain that their personal papers, including letters and address books, were secretly photocopied, that their private conversations were listened to and their telephone calls monitored, that their hotel rooms and luggage were searched without a warrant and that their personal papers and money were taken. They invoke Articles 3, 8 and 14 of the Convention and Article 1 of Protocol No. 1.         The applicants also allege that they were arrested without a warrant and without an interpreter to inform them of their rights or tell them the reasons for the arrest. During their detention they were not permitted to inform anyone of their arrest, they were not charged until the day after their arrest and they were not brought before a judge until 72 hours after their arrest. They add that the judge prolonged their detention without hearing them. In this respect they invoke Article 5 paras. 1, 2 and 3 and Article 6 para. 3 (a) of the Convention.         The applicants complain that they were not given the precognitions of the witnesses or allowed to cross-examine them, that they received all formal documents in English, and that the facilities in prison were insufficient for them to prepare properly for the trial. They allege that at the trial the judge instructed the jury to resolve any doubts in favour of the Crown and to interpret the evidence in the widest possible sense.   They complain that the media stirred up anti- Colombian feeling and denied them a fair trial. They add that their nationality was taken into account as "circumstantial evidence" against them.         Moreover, the applicants complain that the granting of legal aid for their appeals was delayed, giving them insufficient time to prepare them properly, and that the Scottish Legal Aid Board refused to sanction translations of essential documents, namely the trial judge's charge to the jury and his supplementary report, or to cover the cost of preparing a transcript of the trial. They also complain that their convictions were confirmed in spite of the finding that the trial judge had misdirected the jury and in spite of evidence suggesting that there were certain inaccuracies in their indictment, and that their appeals against sentence were rejected in spite of reports confirming their previous good character, their family circumstances and the first applicant's state of health. They allege that the sentences were politically motivated. They refer to Articles 6 paras. 1, 2, 3 (a), (b), (c), (d) and (e), 7 para. 1, 13 and 14 of the Convention.         The applicants also complain that the refusal of access to a telephone, which is their only direct means of communication with their families in Colombia, is contrary to Articles 3 and 8 of the Convention and that they were exposed to degrading treatment, contrary to the former provision, as a result of erratic driving during the journey to Edinburgh for the appeal hearing.         Finally, the applicants complain that no action was taken by the prosecuting authorities on their complaints about perjury at the trial, and they invoke Article 13 in this respect.   THE LAW   1.     The applicants complain that they were subject to degrading searches and to an unjustified surveillance operation, that their personal documents were photocopied and taken away, their personal belongings looked into and their telephone conversations listened to. They invoke in this respect Articles 3, 8 and 14 (Art. 3, 8, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).         The applicants raise several other complaints in respect of their arrest. They contend that it was unlawful, based on no grounds, and carried out without an interpreter to inform them of their rights and the reasons for the arrest. They further allege that they were not permitted to inform anyone, that they were not charged until the following day and that they were not brought before a judge until 72 hours later. They invoke in this connection Article 5 paras. 1, 2 and 3 and 6 para. 3 (a) (Art. 5-1, 5-2, 5-3, 6-3-a) of the Convention.         However, the Commission finds that it is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of these provisions of the Convention, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken". Where there is no relevant "final decision", the six month period runs from the date of the act complained of. In the present case the said acts took place between 18 April 1988 - date of the applicant's arrival in Scotland - and 25 April 1988 - date of their first appearance before a judge - whereas the application was submitted to the Commission on 3 May 1990, that is, more than six months later. 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.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicants consider that the criminal charges against them were not determined in accordance with the requirements of Article 6 paras. 1, 2, 3 and of Articles 7 and 14 (Art. 6-1, 6-2, 6-3, 7, 14) of the Convention. They submit that they were not given the precognitions of the witnesses, that all documents were in English and that insufficient facilities were granted to them in prison to prepare their defence. The applicants further contend that the media stirred up anti- Colombian feelings, and that the trial judge instructed the jury to resolve doubts in favour of the Crown.         However, the Commission finds that it is not required to decide whether or not the present application discloses any appearance of the alleged violations of Article 6 (Art. 6) of the Convention during or in connection with the trial which took place between 1 August and 2 September 1988 before the High Court of Judiciary sitting in Greenock, as Article 26 (Art. 26) of the Convention provides that "the Commission may only deal with the matter after all domestic remedies have been exhausted."         In the present case the complaints raised by the applicants before the Commission were not raised in their appeals, which concerned exclusively questions of evidence and the question of the alleged misdirection to the jury and the allegedly excessive length of the sentences, given the mitigating factors put forward. Since the condition as to the exhaustion of domestic remedies has not been complied, with it follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.     The applicants also consider that the appeal proceedings did not meet the requirements of Article 6 (Art. 6) of the Convention since legal aid was delayed, leaving them with insufficient time to prepare their defence. They further contend that they were denied a transcript of the trial and translations of certain documents into Spanish. They also complain that the Court of Criminal Appeal upheld their convictions in spite of finding that the trial judge had misdirected the jury, and that it rejected their appeals against sentence in spite of reports confirming their previous good character, their family circumstances and the first applicant's state of health. They allege that the sentences were politically motivated. In this respect, the applicants invoke Articles 13 and 14 (Art. 13, 14) of the Convention.         The Commission observes firstly that the applicants have not indicated the date on which the Scottish Legal Aid Board finally granted them legal aid for the appeal proceedings. It further notes that their solicitors filed their appeals with notes of grounds of appeal attached to them on 30 September 1988. According to documents submitted by the applicants themselves, they were subsequently able to consult on several occasions with their lawyers, who submitted further notes of appeal in March and April 1989. The Court of Criminal Appeal did not deliver its decisions on the applicants' appeals until a year later. Moreover, with regard to a transcript of the trial, the Commission notes that no transcript is prepared unless ordered by the appeal court.         It is true that translations required by the applicants were refused on the ground that they amounted to excessive and unreasonable expense. However, the Commission recalls in this connection that the absence of a written translation of a judgment does not in itself entail a violation of Article 6 para. 3 (e) (Art. 6-3-e) (see Eur. Court H.R., Kamasinski Case, judgment of 19 December 1989, Series A no. 168, p. 38, para. 85).   Having regard to the fact that in jury trials in Scotland a transcript of the charge to the jury is made available to the defence for the purposes of preparing an appeal, the Commission considers that the absence of a written translation thereof does not in itself entail a violation of Article 6 para. 3 (e) (Art. 6-3-e). It recalls that there was interpretation throughout the trial, including the charge to the jury, and that the applicants make no complaint about the adequacy of that interpretation, nor do they suggest that they were unable to communicate effectively with the lawyers who represented them at the trial, either at that time or while the appeals were pending.   The Commission further recalls that the applicants obtained legal aid for their appeals and that, with regard to the charge to the jury, the appeals were based on alleged misdirections contained therein.   Bearing in mind that additional notes of appeal by counsel were lodged on behalf of the applicants prior to the first appeal hearing, the Commission finds that the lack of a translation of the charge to the jury did not prevent them from effectively making an appeal with the assistance of their legal advisers, and that they had sufficient time and facilities to prepare the appeals.         With regard to the trial judge's supplementary report, it follows from the judgment of the Court of Criminal Appeal of 5 April 1990 rejecting the applicants' appeals against conviction that the applicants' counsel had had every opportunity to familiarise themselves with the report prior to the hearing, and there is no indication that the applicants were unable to communicate freely with their lawyers in order to discuss the content of the report (cf. No. 14170/88, Dec. 12.3.90, unpublished). In these circumstances, the Commission does not find that Article 6 para. 3 (e) (Art. 6-3-e) of the Convention required the provision of legal aid for a translation of the judge's report.         Taking into consideration the situation as a whole in which the defence was placed in preparing the appeals, the Commission does not find any appearance of a violation of Article 6 para. 3 (b) and (e) (Art. 6-3-b, 6-3-e) of the Convention.         The applicants also submit that they were not given a fair hearing, due to the misdirection by the trial judge, and that the appeal court ought to have ordered a re-trial. In addition, they complain that their sentences were confirmed in spite of mitigating circumstances.         The Commission nevertheless 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 the 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 established 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 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31 at p. 45). The Commission notes in this respect that the High Court of Justiciary, sitting as a Court of Criminal Appeal, upheld the applicants' claim that the trial judge had misdirected the jury but found that in the circumstances of the case this could not have made any difference to the outcome since the applicants' conviction relied on ample other evidence showing that both applicants had been in contact with other co-accused who were later caught in possession of drugs as well as with crew members from the vessel on which cocaine was also found. After both applicants were seen at the docks near to it, the second applicant was also seen on board the said vessel.   In these circumstances, the Commission does not consider that the rights of the defence were prejudiced by the misdirection of the trial judge (cf., mutatis mutandis, N° 14067/88, Dec. 6.7.89, unpublished).         As to the applicants' complaint that their appeals against sentence were unjustifiably rejected, the Commission does not find, having regard to the seriousness of the offences in respect of which the applicants were convicted, that the sentences imposed could be regarded as arbitrary or unreasonable. It follows that this part of the application must be rejected as being manifestly ill-founded.   4.     The applicants further complain that the denial of access to a telephone, which is their only direct means of communication with their families in Colombia, constitutes an unjustified interference with their family life protected by Article 8 (Art. 8) and inhuman treatment contrary to Article 3 of the Convention. The latter provision is also said to have been violated by reason of erratic driving during a journey to Edinburgh.         The applicants finally allege that there has been a violation of Article 13 (Art. 13) of the Convention because no action was taken in respect of their complaints as to the perjury of certain witnesses during the trial.         The Commission recalls that the possibility of remaining in contact with one's family constitutes one of the elements of the right to respect for family life as protected by Article 8 (Art. 8) of the Convention. It notes, however, that denial of access to the telephone is a consequence of the applicants' classification as category A prisoners, a classification which implies stricter safety requirements in their respect so as to avoid the risk of their escape from prison. Furthermore, it observes that the applicants' separation from their families is the direct and inevitable result of their conviction of serious crimes in the United Kingdom (cf. Nos. 8022/77, 8025/77 and 8027/77, Comm. Report 18.3.81, D.R. 25 p. 15).         The Commission further observes that the applicants have not been prevented from using other means of communicating with their families. There is in particular no indication that they have been restricted in writing or in receiving visits from them. Therefore, refusal of access to the telephone in prison does not in itself amount to an interference with the applicants' right to respect for their family life as protected by Article 8 (Art. 8) of the Convention, since in the present case the applicants' classification as category A prisoners is not shown to have impeded unreasonably and arbitrarily their ability to remain in contact with their families (cf., mutatis mutandis, N° 6870/75, Dec. 14.5.77, D.R. 10 p. 37). The Commission accordingly considers that the United Kingdom authorities have not shown lack of respect for the applicants' family life.         With regard to the applicants' allegations under Article 3 (Art. 3) of the Convention concerning their journey to Edinburgh, the Commission finds these to be wholly unsubstantiated.         Finally, with regard to the applicants' complaint under Article 13 (Art. 13) of the Convention that no action was taken in respect of their allegations of perjury, the Commission recalls that the Convention does not guarantee a right to have criminal proceedings instituted against a third person (cf. N° 1488/62, Collection 13 p. 93).         This part of the application must therefore also be rejected as being manifestly ill-founded within the meaning of Article 27 par. 2 (Art. 27-2) of the Convention.         For these reasons the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.           Secretary a.i. to the                  President of the           First Chamber                       First Chamber            (M. de SALVIA)                       (J.A. FROWEIN)