CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 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. 28120/95                       by     (1) Anthony GARLAND                             (2) Stephen McMULLAN                             (3) Hugh McLAUGHLIN                             (4) Michael BECK                             (5) Brendan McCRORY                             (6) Daniel PETTICREW                             (7) Ciaran McALLISTER                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 1995 by Anthony GARLAND, Stephen McMULLAN, Hugh McLAUGHLIN, Michael BECK, Brendan McCRORY, Daniel PETTICREW, Ciaran McALLISTER against the United Kingdom and registered on 3 August 1995 under file No. 28120/95;        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 applicants are seven British citizens born in 1974, 1969, 1973, 1973, 1967, 1974 and 1975 respectively.   They are all resident in Belfast and represented before the Commission by Mr Peter Madden, of Madden and Finucane, solicitors in Belfast.   The facts as submitted by the applicants can be summarised as follows.   The applicants were all arrested under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989: the first applicant on 2 August 1991, the second, third and fourth applicants four days later, on 6 August 1991, the fifth applicant on 4 November 1991, the sixth applicant on 28 April 1992 and the seventh applicant on 30 April 1992. The applicants were all detained at Castlereagh Holding Centre: the first applicant between 2 and 8 August 1991, the second and third applicants between 6 and 12 August 1991, the fourth applicant between 6 and 9 August 1991, the fifth applicant between 4 and 8 November 1991, the sixth applicant between 28 April and 29 April 1992 and the seventh applicant between 30 April and 1 May 1992.    Apart from the sixth and seventh applicants, who were at no stage permitted to have a solicitor present at their interviews, the other applicants were all denied access to a solicitor for about 48 hours after arrest.        On the basis of admissions made in the course of their interrogation at Castlereagh Holding Centre, the applicants were all charged with inter-alia attempted murder and related offences in respect of a bomb attack on a mobile RUC patrol on 2 August 1991.   The first, second, third and fourth applicants were charged in August 1991, the fifth in November 1991, the sixth in April 1992 and the seventh in May 1992.        The first, third   and fourth   applicants were refused   bail on 18 September 1991, 29 October 1991 and 27 August 1991 respectively, on the basis of the seriousness of the charges they faced, the fear that they would fail to surrender to custody and that they would commit an offence whilst on bail.   The seventh applicant was granted bail on 18 December 1992. The first, third and fourth applicants were granted bail on 27 October 1994, the trial judge considering that since the prosecution no longer sustained its objection that the applicants would commit offences whilst on bail, and taking into account the long period that the applicants had spent in custody, it was in the interests of justice that they should be released.    The second, fifth and sixth applicants were refused bail but were discharged in the course of the trial.        The trial commenced on 9 September 1993 and ended on 9 November 1994.   Judgment was given on 3 March 1995.    Much of the trial concerned disputes as to the admission of statements that had allegedly been made by the applicants in the course of interviews at Castlereagh Holding Centre. On 16 February 1994 the fifth applicant was discharged by the trial judge.   On 24 May 1994 the trial judge exercised his discretion to exclude the statements of the seventh applicant from the trial.   He stated:        "In deciding to exercise my discretion in favour of the accused,      it is precisely and uniquely because of my perception and      assessment of his vulnerable personality that I believe this to      be the correct course.   In other words, it is because of my      evaluation of attributes personal to the accused rather than any      impropriety on the part of the police officers, that I have      reached this decision... I now exercise my discretion to exclude      the statement of the accused in order to avoid unfairness to him      and in the interests of justice."        There being no further evidence against the seventh applicant, the trial judge discharged him.   The second and sixth applicants were similarly discharged on 12 September 1994.   In exercising his discretion to exclude the statements of the second applicant, the Judge stated:        "The allegations made by the accused about the threats of      violence which he claimed were administered to him were not only      intrinsically implausible they were squandered emphatically by      evidence, which I found convincing and compelling.   I should make      it clear that I was persuaded beyond any doubt about the      allegation of ill-treatment which the accused made were untrue.      I reject those allegations without reservation.   The question      of admissibility is not thereby determined.            However, it is claimed on his behalf that the interests of      justice require that I should have regard to the vulnerability      of the accused and his inability to cope with or withstand the      pressures of even legitimate interrogation in deciding whether      his confession should be admitted...            Therefore, in order to avoid unfairness to him, I have      decided to exercise my discretion to exclude the confession which      he was alleged to have made.            I hasten to reiterate and make clear, this conclusion is in      no way intended to be critical of the manner of interview of the      accused.   As I have already said I was convinced by the evidence      called on this voir dire that his allegations are without      foundation."        In exercising his discretion to exclude the statements of the sixth applicant the Judge stated:        "A number of grounds were advanced on his behalf as to why his      alleged admission should not be admitted in evidence... I have      very grave reservations as to the truth of the claims made by      [the sixth applicant].   I believe that many of them are untrue.      I cannot dismiss though, with the requisite degree of confidence      and assurance that could allow me to rule that his confessions      are admissible.   I therefore direct that his admission, alleged      to have been made by him, should not be received in evidence."        In the course of those rulings, the Judge also considered and then rejected applications from the first, third and fourth applicants that their statements should be excluded.   However, as regards the third applicant, the Judge did accede to a request to exclude admissions alleged to have been made by him subsequent to the second deferral of access to his solicitor.   He stated as follows:        "I do not accede to the application made on behalf of this      accused, save in respect of any admission alleged to have been      made by him subsequent to the second deferral of access to his      solicitor on the 8th August. I have concluded that it has not      been established that the second deferral of access was validly      made and that I should exclude any admission made thereafter in      the exercise of my discretion in order to avoid unfairness to the      accused and in the interests of justice.   I shall give my reasons      at a later stage for refusing to accede to the other submission      made on his behalf.        I turn then to the cases of [the first and fourth applicants].      I do not accede to the application made on their behalf and I      shall give my detailed reasons for that refusal in due course.      I consider that the admissions alleged to have been made by them      should be received in evidence."        On 3 March 1995 judgment was given in respect of the first, third and fourth applicants, the second, fifth, sixth and seventh applicants having been previously discharged.   In the course of his judgment, Kerr J. referred to the effect that the absence of audio equipment at the interviews had had on the length of the trial.   He stated:        "... I have myself made the point in the course of submissions      that a voice need not be unduly raised in order to convey a sense      of real menace. I am convinced, however, that this did not occur      in the present case.            I have been obliged, in reaching that conclusion, to rely      heavily on my subjective evaluation of the evidence which was      given by [the fourth applicant] and the interviewing officers on      this topic...            In this context, I feel constrained to say that the task of      resolving the conflict would have been made immeasurably easier -       even if at the prosaic level of reducing considerably the number      of witnesses who required to be called - if audio equipment had      been installed to record the exchanges at interview. I hasten to      acknowledge that there may be strong practical arguments of which      I am not in a position to make a sound judgment which militate      against the introduction of audio equipment in a case such as      this.   The effect of its absence should not be underestimated,      however.   This trial opened in August 1993 and did not end until      December 1994.   It was afflicted by a great number of      interruptions - some inevitable, many, I regret to say,      avoidable.   But an enormous number of court hours was expended      on an examination of what occurred during interviews of this and      the other accused; this was an exercise which would have been      unnecessary if audio recording of the interviews had taken place.      So that the scale of the prolonging effect of the absence of such      equipment may be appreciated, I should state that it is my      confident opinion that had it been available, this trial could      have been completed within a few weeks instead of the sixteen      months that it occupied."        The first, third and fourth applicants were all acquitted on the basis that the prosecution had not disclosed certain evidence to which the applicants were entitled.   Kerr J. stated the following:        "The net position, therefore, is that I have concluded that the      statements made by the accused should be admitted in evidence for      the reasons which I have given.   I have not been provided with      evidence that would justify reversing that decision.   If I accept      and can rely on the contents of the accused's admissions these      are sufficient to establish their guilt.   But I have been told      by the Crown that material which was relevant to the defence of      the accused and which was potentially helpful to their defence      was not produced until after the challenge to the admissibility      of the statements had been completed.   It was also conceded on      behalf of the prosecution, although this concession is not      binding in the Court, that if the exercise of recalling witnesses      was not carried out, I could not be satisfied to the requisite      standard that unfairness to the accused would be avoided if I      continued to have regard to the statements.      ... I feel I cannot ignore what I have been told by Crown counsel      as to the potential of the material which was withheld.   Since      it was accepted that this could have assisted the accused's      defence, it appears to me to be inescapable that it may have      provided the basis for successful challenge to the admission of      the statements in evidence, notwithstanding my conclusion based      on the testimony that I heard.   Equally, the possibility that it      would have provided an effective challenge to the reliability of      those statements cannot be dismissed.   In light of this. I      cannot, in justice, express my satisfaction beyond reasonable      doubt of the adequacy of the statements to establish the guilt      of the accused...              It remains for me to say this.   It will be clear from my      judgment that while I must find the accused not guilty, I do not      consider this result a resounding vindication of their innocence.      Indeed on one view they are the less than deserving beneficiaries      of an inadvertent lapse on the part of the prosecuting      authorities.   Nevertheless, in common with all who appear before      these Courts, they are entitled to expect and receive in their      favour the strict and precise application of our criminal law.      It is because the stringent requirements of proof of guilt      imposed by that system of law have not been achieved that they      are entitled to be pronounced not guilty."     COMPLAINTS   1.    All the applicants complain that they were subjected to inhuman and degrading treatment contrary to Article 3 of the Convention.   2.    The applicants further complain under Article 5 para. 3 of the Convention that they did not receive a trial within a reasonable time and that they were not released pending trial.   3.    The applicants also complain that they were denied the right to a fair trial as guaranteed by Article 6 para. 1 of the Convention and in particular that they were forced to incriminate themselves contrary to Article 6 para. 2, that they were denied access to a lawyer and adequate facilities to prepare their defences contrary to Article 6 para. 3 (b) and (c).   4.    The applicants further complain under Article 6 para. 1 that they did not have a trial within a reasonable time.   5.    The first, third and fourth applicants complain that the comments of the Judge at the end of his judgment of 3 March 1995 violated their right to be presumed innocent as guaranteed by Article 6 para. 2 of the Convention.   THE LAW   1.    The applicants complain that they were subjected to inhuman and degrading treatment contrary to Article 3 (Art. 3) of the Convention which provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."      The Commission notes that the applicants allege that they suffered ill-treatment in the course of interrogation at Castlereagh Holding Centre.   However the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation 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 final, domestic decision taken in respect of complaints, the six months time-limit runs from the date of the events which are complained of (see eg. No. 9599/81, Dec. 11.3.85, D.R. 42 p. 33).        The Commission recalls that the first applicant was interrogated between 2 and 8 August 1991, the second and third applicants between 6 and 12 August 1991, the fourth applicant between 6 and 9 August 1991, the fifth applicant between 4 and 8 November 1991, the sixth applicant between 28 April and 29 April 1992 and the seventh applicant between 30 April and 1 May 1992. The applicants' complaints were however introduced before the Commission on 7 July 1995.   The Commission did not therefore receive the applicants complaints until more than 3 years after the alleged ill-treatment had taken place.        Even assuming therefore that there were no domestic remedies to exhaust in relation to the alleged ill-treatment, they did not submit these complaints to the Commission within the requisite six months time limit laid down in Article 26 (Art. 26) of the Convention.        Accordingly, the above complaints must be dismissed as inadmissible as out of time pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicants also complain under Article 5 para. 3 (Art. 5-3) of the Convention that they were not released pending trial and were denied the right to a trial within a reasonable time.   Article 5 (Art. 5), so far as relevant, provides:        "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: ...              c.     the lawful arrest or detention of a person effected      for the purpose of bringing him before the competent legal      authority on reasonable suspicion of having committed an offence      or when it is reasonably considered necessary to prevent his      committing an offence or fleeing after having done so; ...        3.     Everyone arrested or detained in accordance with the      provisions of paragraph 1 (c) of this Article shall be brought      promptly before a judge or other officer authorised by law to      exercise judicial power and shall be entitled to trial within a      reasonable time or to release pending trial.   Release may be      conditioned by guarantees to appear for trial."        The Commission recalls that the applicants were all released on or before 27 October 1994, either on bail or because they had been discharged by   the Judge.   As the applications were not lodged until 7 July 1995, which is more than six months after the applicants were released, it follows that the complaints relating to length of detention on remand were lodged out of time, having regard to the six month time-limit imposed by Article 26 (Art. 26) of the Convention (cf. No. 8130/78, Dec. 10.5.79, D.R. 16 p. 120).        It follows that this part of the application must therefore be dismissed as out of time pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The applicants also complain that they were denied the right to a fair trial as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention and in particular that they were forced to incriminate themselves contrary to Article 6 para. 2 (Art. 6-2), that they were denied access to a lawyer and adequate facilities to prepare their defences contrary to Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c). Those provisions provide, so far as relevant:        "1.    In the determination of his civil rights and obligations or      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...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:              b.     to have adequate time and facilities for the      preparation of his defence;              c.     to defend himself in person or through legal      assistance of his own choosing or, if he has not sufficient means      to pay for legal assistance, to be given it free when the      interests of justice so require; ..."        The    Commission recalls that the applicants were all acquitted. In particular it notes that the second, fifth, sixth and seventh applicants were discharged because the trial judge exercised his discretion to exclude their statements from the trial in the interests of justice.   As regards the first, third and fourth applicants, the judge acquitted them on the basis that the prosecution had failed to disclose evidence that might have been relevant to his decision as to whether or not to admit their statements in the trial.        As shown by the rule of the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention, it first falls to the national authorities to redress any violation of the Convention.   In the present case, the Commission considers that the alleged violations of the Convention relating to the trial procedure were rectified by the acquittal of the   applicants (cf. No. 15831/89, Dec. 25.2.91 D.R. 69 p. 317).        Accordingly, the applicants can no longer claim to be victims of a violation in respect of these matters and these complaints must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicants further complain that the criminal charges against them were not determined within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.        The proceedings at issue were of different lengths for each of the applicants, since they were arrested and acquitted on different dates.   The Commission recalls that the first applicant was arrested on 2 August 1991 and acquitted on 3 March 1995, a total period of 3 years, 7 months; that the second applicant was arrested on 6 August 1991 and acquitted on 12 September 1994, a total period of 3 years, 1 month and 3 days; that the third and fourth applicants were arrested on 6 August 1991 and acquitted on 3 March 1995, a total period of 3 years, 6 months and 28 days; that the fifth applicant was arrested on 4 November 1991 and acquitted on 16 February 1994, a total period of 2 years, 3 months and 12 days; that the sixth applicant was arrested on 18 April 1992 and acquitted on 12 September 1994, a total period of 2 years 4 months and 14 days; and that the seventh applicant was arrested on 30 April 1992 and acquitted on 24 May 1994, a total period of 2 years 24 days.        The Commission finds that it cannot, on the basis of the file, determine the admissibility of this part of the application at this stage and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.   5.    The first, third and fourth applicants complain that the comments of the Judge at the end of his judgment of 3 March 1995 where he stated that he did not consider the result to be "a resounding vindication of their innocence", violated their right to be presumed innocent as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.        The Commission finds that it cannot, on the basis of the file, determine the admissibility of this part of the application at this stage and considers that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of these complaints to the respondent Government.   For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicants' complaints      under Article 6 (Art. 6) of the Convention concerning the length      of the proceedings and the right to be presumed innocent;        unanimously,      DECLARES INADMISSIBLE the remainder of the application.              M.F. BUQUICCHIO                             J. LIDDY           Secretary                                President      to the First Chamber                     of the First Chamber