CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 janvier 1996

.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. 27284/95                       by Robert J. DE WARRENE WALLER                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 18 January 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 28 February 1995 by Robert J. DE WARRENE WALLER against the United Kingdom and registered on 10 May 1995 under file No. 27284/95;        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 British citizen born in 1950. The facts of the case, as submitted by the applicant, may be summarised as follows.        Suspended orders of imprisonment were made against the applicant for non-payment of the community charge (poll tax) in 1992 and 1993. He was not in the event imprisoned, and paid off all his arrears in 1993.        The applicant stopped making regular payments on a regular basis on 14 March 1994, as he was no longer working and had become reliant on income support.        The applicant was ordered to attend court to show cause why he should not be imprisoned and on 13 July 1994 a hearing was held before the Ipswich Magistrates' Court.   The applicant did not attend.   A liability order was made for the outstanding amount of community charge of £624.66, and a warrant was made for the applicant's imprisonment for 69 days.        The applicant surrendered himself into police custody on 28 October 1994 and was transferred to Norwich prison.   He was released after 50 days, having paid off part of the outstanding debt.        The applicant did not challenge the committal order.   COMPLAINTS        The applicant alleges a violation of Articles 5 and 6 of the Convention, referring generally to the case of Benham v. the United Kingdom (No. 19380/92, Comm. Rep. 29.12.94, pending before the European Court of Human Rights).   It was only following his release and the publicity given to the case of Benham that the applicant became aware of his potential remedy before the Commission.   THE LAW   1.    The applicant alleges a violation of Article 5 (Art. 5) of the Convention.   He considers that his detention did not comply with Article 5 para. 1 (Art. 5-1), and that the effect of Section 108 of the Courts and Legal Services Act 1990 was to deprive him of the right to seek compensation in respect of that unlawful detention.        Article 5 (Art. 5) of the Convention provides, so far as relevant, as follows:        "1.    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;              b.     the lawful arrest or detention of a person for non-            compliance with the lawful order of a court or in order to            secure the fulfilment of any obligation prescribed by law;      ...            5.     Everyone who has been the victim of arrest or detention in      contravention of the provisions of this Article shall have an      enforceable right to compensation."        Article 26 (Art. 26) of the Convention provides that the Commission may only deal with a matter "after all domestic remedies have been exhausted ... ".        The Commission recalls that in the case of Benham (No. 19380/92, Comm. Report 29.12.94, pending before the European Court of Human Rights), it expressed its opinion that there had been a violation of Article 5 (Art. 5) of the Convention in that the applicant's detention had been unlawful, and that he was unable to sue for unlawful imprisonment in respect thereof.   In that case, the Commission had recourse to the decision of the Divisional Court in concluding that the applicant's detention had been unlawful within the meaning of the Convention.        In the present case, the applicant did not challenge the decision of the magistrates, either by way of judicial review or by way of case stated.   The Commission does not, therefore, have the benefit of the views of the superior courts in the matter.   The question arises whether the rule on exhaustion of domestic remedies required the applicant to put his case to the High Court.   The Commission notes in this connection that although it had recourse to the High Court's reasoning in concluding that there had been a violation of Article 5 (Art. 5) in the case of Benham, the High Court's findings did not satisfy the requirements of that provision.        Moreover, without the benefit of the High Court's analysis of the requirements of the domestic law in the case, it is difficult for the applicant to satisfy the requirements of the Convention in establishing that his detention was, or may have been, unlawful in domestic law.        It follows that the applicant has not complied with the requirements of Article 26 (Art. 26) of the Convention, and this complaint must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also alleges a violation of Article 6 (Art. 6) of the Convention because of the absence of legal aid before the magistrates.        Article 26 (Art. 26) of the Convention further provides that the Commission may only deal with a matter "within six months from the date on which the final decision was taken".   According to the Commission's case-law, where there is no remedy against the acts of a domestic authority, the six months' time limit in Article 26 (Art. 26) runs from the date of the decision complained of (see, for example, No. 9599/81, Dec. 11.3.85 D.R. 42 p. 33 and the cases referred to at pp. 40, 41).        Legal aid is not available in community charge committal proceedings as a matter of law: the magistrates have no discretion (which could possibly be challenged) to grant legal aid.   An application to the High Court could therefore not have resulted in the grant of legal aid to the applicant.   Further, even if proceedings before the High Court had been brought and had been successful - as in the case of Benham - the position as to legal aid would not be affected.        Accordingly, the Commission finds that the six months' period referred to in Article 26 (Art. 26) of the Convention began with the magistrates' decision and committal order on 13 July 1994.   However, the applicant introduced his application only on 17 February 1995, that is, more that six months after the expiry of the 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.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)