CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1993

.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. 18120/91                       by Paul BURNS and Eleanor TUMILSON                       against the United Kingdom           The European Commission of Human Rights (Second Chamber) sitting in private on 5 May 1993, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  Sir   Basil HALL                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS                       M.A. NOWICKI                    Mr.   K. ROGGE, Secretary to the Second 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 8 November 1990 by Paul BURNS and Eleanor TUMILSON against the United Kingdom and registered on 24 April 1991 under file No. 18120/91;         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         The first applicant is a citizen of the United Kingdom, born in 1964 and resident in Belfast.   The second applicant is his fiancée. She was born in 1967 and also resides in Belfast.   They are represented before the Commission by Messrs. Flynn and McGettrick, Solicitors, Belfast.         The facts of the present case, as submitted by parties, may be summarised as follows:         At approximately 19.45 hours on 30 September 1990 the first applicant was driving his car, accompanied by the second applicant, when they were stopped by soldiers of the Ulster Defence Regiment at Hope Street, Belfast.   The soldiers required the applicants to give their names, addresses and details of where they were coming from and going to, which they did.   The soldiers appeared to check these details and then, at approximately 20.30 hours they required the applicants to get out of the car which was then searched inside.   The applicants were required to wait at the roadside for 20 minutes while this was going on and they were then asked questions about a street map which was in the car.   10 minutes later the soldiers asked the applicants if they would submit to a personal search, which they refused.   The police were called.         When the police arrived the applicants were told that they had to accompany the soldiers to the Maze Prison to be searched, together with the car.   Section 21 of the Prevention of Terrorism (Temporary Provisions) Act 1989 authorises the police to require the occupants of a suspected car to accompany it to a designated place and wait while the vehicle undergoes a thorough search.   The applicants were not allowed to travel together in the car.   The first applicant was taken to the Maze in a Landrover and the second applicant was taken as a passenger in the suspected vehicle driven by a policeman, with two soldiers in the back.   They arrived at the Maze around 21.30 hours and were taken to a custom-built search area.   The search of the car was apparently made by the army.         The first applicant was taken to a hangar and further questioned by soldiers.   He was subjected to a body search and required to remove his jacket and empty his pockets.   He was then required to wait in a portakabin before being released at approximately 23.25 hours.          No details were given about what happened to the second applicant.         On 26 February 1992 the applicants issued separate writs against the police and the Ministry of Defence, claiming damages for "personal injuries, injury to reputation, loss of liberty, mental anxiety and distress, physical discomfort and inconvenience, loss and damage sustained by reason of the negligence, assault, battery, false imprisonment, breach of duty, trespass to the person and trespass to goods".   These proceedings are still pending.   COMPLAINTS         The first applicant complained of a violation of his rights under Article 5 paras. 1, 2 and 3 of the Convention, as well as a violation of Article 13 of the Convention.         Apparently the second applicant associated herself with these complaints.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 8 November 1990 and registered on 24 April 1991.         After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 13 May 1992.   It decided, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of the application to the respondent Government, without requesting the parties' observations at that stage pending the outcome of Application No. 17711/91, Kelly v. the United Kingdom.         On 4 September 1992 the Commission declared the Kelly case inadmissible for non-exhaustion of domestic remedies, in accordance with Articles 26 and 27 para. 3 of the Convention.   This decision was transmitted to the parties in the present case on 8 December 1992 and the applicants were requested to submit their comments on their case in the light of the decision and to state whether they wished to maintain their application.   The applicants did not reply to the invitation.         By letter of 15 December 1992 the Government informed the Commission that the applicants were in the process of suing the police and the Ministry of Defence in relation to the facts of their case, which gave rise to their complaints before the Commission.   The Government also made certain observations as to the admissibility of the application.   The applicants submitted no response to the Government's letter.     THE LAW         The applicants complained that various aspects of their right to liberty and security of person, ensured by Article 5 (Art. (art. 5) of the Convention, were violated when the army and police detained them for a few hours on 30 September 1990 while searching the car in which they had been travelling.         The Government submitted that the applicants have not exhausted domestic remedies before the domestic courts as is required by Article 26 (Art. 26) of the Convention.   They contended that the treatment of which the applicants complain before the Commission is the same as that complained of before the domestic courts, where proceedings are still pending.         The Commission refers to its decision in the case of Kelly v. the United Kingdom, which presented similar facts and allegations to the present application (No. 17711/91, Dec. 4.9.92, unpublished).   In that case the Commission held as follows:         "Article 26 (Art. 26) of the Convention precludes the Commission       from dealing with any case where domestic remedies have not been       exhausted ...         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...   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."         The Commission finds, in the absence of any submissions from the applicants on this point, that the present application cannot be distinguished from the Kelly case.   The Commission concludes, therefore, that the applicants have not yet exhausted domestic remedies, as is required by Article 26 (Art. 26) of the Convention, and that their application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second Chamber               (K. ROGGE)                            (S. TRECHSEL)