CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 octobre 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. 22299/93                     by D.G.                     against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 19 October 1993, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA             Mrs. M.F. BUQUICCHIO, Secretary to the 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 7 July 1993 by D.G. against the United Kingdom and registered on 21 July 1993 under file No. 22299/93;        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 applicant is a United Kingdom citizen born in 1966.   He is at present detained at H.M. Prison, Leyland, Lancashire.   He is represented before the Commission by E. Abrahamson, a solicitor practising in Liverpool.        The facts of the case, as submitted by the applicant's representative, may be summarised as follows.        On 28 November 1991 in the Crown Court at Manchester the applicant, who is black, was convicted by a majority of 10 to 2 of robbery and sentenced to 6 years' imprisonment.   The jury retired at 10:56 am and returned at 12:47 pm when a handwritten note was handed to the trial judge.   It read:        "JURY SHOWING RACIAL OVERTONES 1 MEMBER TO BE EXCUSED".        The trial judge told the jury, inter alia:        "Everybody has preconceived ideas and thoughts.   You are      brought here from twelve different backgrounds and expected to      apply your twelve different minds to the problems that are put      before you. ... Any thoughts or prejudice of one form or      another, for or against anybody, must be put out of your mind.      ... I am certainly not going to discharge any member of the      jury because he or she may wish to do so because they dislike      certain overtones in the conversation.   Decide this case      according to the evidence."        At 2:20 pm the jury were called back by the trial judge for a majority direction.   At 3:20 pm they were called back again but had still not agreed upon either a unanimous or majority verdict.   The trial judge told them:        "Your task is to pool that experience and wisdom.   You must do      that by giving your views and listening to the views of other      people.   Of necessity there will be discussion.   There has got      to be argument and there has got to be give and take within      the scope of the oath that each of you have taken.   That is      the way you achieve agreement."        At 4:06 pm the jury returned and delivered a 10-2 majority verdict finding the applicant guilty.        On 12 December 1991 the applicant applied to the Court of Appeal (Criminal Division) for leave to appeal against conviction. The application was refused on 28 February 1992, the single judge observing to the applicant:        "The learned judge dealt with the novel and delicate situation      presented by the jury note with tact and sensitivity.   It      would have been entirely inappropriate for him to have      conducted some sort of enquiry.   There was no material      irregularity at your trial."        On 20 May 1992 the applicant renewed his application to the Court of Appeal (Criminal Division) for leave to appeal against conviction.   The renewed application was refused by the Full Court on 19 January 1993.   It observed inter alia:        "Matters of this kind raise delicate issues.   The jury system      does require an element of give and take after proper      directions from the judge.   In our judgment His Honour Judge      Hammond dealt with this matter sensitively, sensibly and      correctly, and cannot be faulted for a conclusion that the      jury should continue the deliberations which they had given      their oath to undertake.   We, therefore, find no ground for      complaint and we dismiss this application."   COMPLAINTS        The applicant complains that he was not given a fair hearing by an independent and impartial tribunal contrary to Article 6 of the Convention.   He complains that the jury were not impartial in that one or more members were indicating some form of racial prejudice. The applicant further complains that the Court of Appeal failed to apply the correct test for bias.        The applicant invokes Article 5(1)(a) of the Convention, complaining that once the jury indicated that one or more of its members was or may have been prejudiced, the jury and therefore the Court ceased to be "competent" with regard to the applicant.        The applicant also invokes Article 13 of the Convention, complaining that he has no effective remedy before a national authority because the Convention has not been incorporated into United Kingdom law.        The applicant also complains that discrimination has taken place against him on grounds of his race and/or colour contrary to Article 14 of the Convention, in that the trial judge allowed the jury to continue its deliberations when it was clear that one or more members of the jury were prejudiced against the applicant and failed to make any enquiry as to how many members were prejudiced and as to the reasons for their prejudice; and in that the Court of Appeal, in failing to set aside his conviction, treated racial bias less seriously than other types of bias.   THE LAW   1.    The applicant complains that he did not receive a fair trial by an independent and impartial tribunal contrary to Article 6 para. 1 (Art. 6-1) of the Convention.   In particular he complains that the jury which convicted him was not impartial in that one or more of its members were racially motivated.   Article 6 para. 1 (Art. 6-1) provides, so far as relevant:        "In the determination 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."        The applicant also alleges violation of Article 14 (Art. 14) of the Convention, in respect of the proceedings before the courts, which provides, so far as relevant:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any      ground such as ... race, colour, ...."        The Commission considers that the complaints concerning the impartiality of the jury and concerning discrimination raise important issues of fact and law. It therefore decides to invite the respondent Government to submit observations pursuant to Rule 48 para. 2(b) of the Commission's Rules of Procedure and accordingly to adjourn this part of the application.   2.    Insofar as the applicant complains generally that the Court of Appeal failed to apply the correct test for bias, the Commission 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 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 constant case-law (see eg. No. 458/59, X v Belgium, Dec. 29.3.60, Yearbook 3 pp.222, 236; No. 5258/71, X v Sweden, Dec. 8.2.73, Collection 43 pp.71, 77; No. 7987/77, X v Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45).   The Commission finds no indication on the facts of this case that   the Court of Appeal failed to comply with the standards of fairness imposed by Article 6 para. 1 (Art. 6-1) of the Convention.        It therefore 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.   3.    The applicant invokes Article 5(1)(a) (Art. 5-1-a), complaining that the court ceased to be "competent" with regard to himself as soon as it was indicated that one or more members of the jury were or may have been prejudiced against the applicant. Article 5(1)(a) (Art. 5-1-a) 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; ..."        A "competent court" for the purposes of Article 5(1)(a) (Art. 5-1-a) is a judicial body independent of the executive and of the parties and offering adequate procedural guarantees (see eg. No. 7341/76, Eggs v Switzerland, Dec. 4.3.78, D.R. 15 pp. 35, 62) and the case-law of the Court (eg. Eur. Court H.R., Engel judgment of 8 June 1976, Series A no. 22, pp. 27-28, para. 68).   A body which satisfies these criteria cannot cease to be a "competent court" by virtue of a procedural irregularity which is alleged to arise in the course of the trial.   A person convicted after trial before such a court must rely on Article 6 (Art. 6) to complain of any procedural irregularity allegedly arising in the course of the hearing.        The Crown Court before which the applicant was tried was, at the outset of the trial, a "competent court" within the meaning of that term in Article 5(1)(a) (Art. 5-1-a) and, even assuming a procedural irregularity had been committed during the trial, could not cease to be a competent court by virtue thereof.   There is therefore no appearance of a violation of Article 5(1)(a) (Art. 5-1-a) 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 applicant also complains of a breach of Article 13 (Art. 13) of the Convention in that he has no effective remedy before a national authority as the United Kingdom Government has not incorporated the Convention into domestic law.   Article 13 (Art. 13) provides:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before      a national authority notwithstanding that the violation has      been committed by persons acting in an official capacity."        The Commission recalls that neither Article 13 (Art. 13) nor the Convention in general prescribes any particular manner by which the Contracting States should ensure within their internal law the effective implementation of the provisions of the Convention.   The Commission refers on this point to its own case-law (eg. No. 13013/87, Dec. 14.12.88, D.R. 58 pp. 163, 189-190) and to the case- law of the Court (eg. Eur. Court H.R., Swedish Engine Drivers' Union judgment of 6 February 1976, Series A no. 20, p.18, para. 50).        It follows that the United Kingdom is not obliged to transform the text of the Convention into domestic law.   In applying the case- law mentioned above the Commission finds no appearance of a breach of Article 13 (Art. 13).        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.          For these reasons, the Commission by a majority        ADJOURNS THE EXAMINATION OF THE APPLICANT'S COMPLAINTS      RELATING TO THE IMPARTIALITY OF THE JURY AND RELATING TO      DISCRIMINATION;        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber       President of the First Chamber       (M.F. BUQUICCHIO)                       (A. WEITZEL)