CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 30052/96                       by Robert KERR                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 30 December 1994 by Robert KERR against the United Kingdom and registered on 5 February 1996 under file No. 30052/96;        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 an Irish national, born in 1956, and is detained in the Maze prison in Northern Ireland. Before the Commission, he is represented by Ms P. Coyle, a solicitor practising in Belfast.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 31 May 1976 the applicant was convicted by the Belfast City Commission of the killing on 3 March 1978 of J.M. and N.S. and sentenced to life imprisonment.        Claims for criminal injury compensation were filed by the personal representatives of J.M. and N.S. These claims resulted in payment by the Secretary of State, pursuant to the Criminal Injuries (Compensation)(Northern Ireland) Order 1977 (hereinafter referred to as the "1977 Order"), of a total amount of £ 35,820.42 to the claimants for criminal injuries directly attributable to the offences of which the applicant had been convicted.        Following a major incident in the Maze prison in September 1983, where he was detained at that time, the applicant brought proceedings against the Northern Ireland Office (hereinafter referred to as "NIO") and the Governor of the Maze prison by summons of 31 January 1984, claiming damages for personal injuries and unlawful treatment inflicted by the prison officers immediately after the incident.        By judgment of 25 June 1991, the High Court of Justice in Northern Ireland found in favour of the applicant and ordered the defendants to pay the sum of £ 7,500 together with 15% interest per annum until payment to the applicant and awarded the applicant's legal costs incurred against the defendants. The High Court further ordered that the enforcement of the judgment be stayed for a period of three weeks.        On 30 July 1991, the Secretary of State started proceedings against the applicant before the Belfast Recorder's Court claiming reimbursement, pursuant to Article 16 (1) of the 1977 Order, from the applicant of the sums awarded to the personal representatives of J.M. and N.S.        Article 16 (1) of the 1977 Order, insofar as relevant, provides:        "Where      (a)    any person is convicted of a criminal offence; and        (b)    compensation has been paid or is payable in respect of a            criminal injury directly attributable to that offence,        a county court may, on an application made to it by the Secretary      of State, make an order directing the offender to reimburse to      the Secretary of State the whole or any specified part of the      amount of compensation paid or payable."        On 29 October 1991 the Recorder found in favour of the State Secretary and ordered the reimbursement of £ 7,500 under Article 16 (1) of the 1977 Order. The applicant filed an appeal against this decision with the High Court of Justice in Northern Ireland on 12 November 1991.        The High Court rejected the applicant's appeal on 30 June 1994.     COMPLAINTS   1.    The applicant complains that the reimbursement ordered deprived him of his right under Article 5 para. 5 of the Convention to compensation for having been subjected to a treatment contrary to Article 3 whilst he was in detention.   2.    The applicant further complains that the reimbursement ordered deprives him of his rights under Articles 3 and 5 of the Convention to a lawful sanction against further assaults to which he may be subjected whilst in detention, as it would be open for the NIO to follow the same procedure.   3.    The applicant finally complains under Article 14 of the Convention that he has been discriminated against, as the NIO does not claim reimbursement from other persons in similar circumstances.     THE LAW   1.    The applicant complains that the reimbursement ordered deprived him of his right under Article 5 para. 5 (Art. 5-5) of the Convention to compensation for having been subjected to a treatment contrary to Article 3 (Art. 3) whilst he was in detention.        The Commission recalls that the right to compensation under paragraph 5 of Article 5 (Art. 5-5) of the Convention, which paragraph the applicant relies upon, is limited to situations in which a violation of one of the paragraphs 1 to 4 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the Convention has been established, either by a domestic authority or by one of the Convention institutions (cf. No. 24722/94, Dec. 10.4.95, D.R. 81 p. 130).        The Commission notes that, on 31 May 1976, the applicant was convicted and sentenced to life imprisonment, which sentence he was and still is serving. The applicant's detention falls therefore within the scope of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. It has not appeared nor has it been argued that the applicant's detention is contrary to his rights under Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) of the Convention.        Furthermore, the right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention does not include compensation for violations of any other provisions of the Convention, such as Article 3 (Art. 3).        It follows that this complaint must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention for being incompatible ratione materiae with the provisions of the Convention.   2.    The applicant further complains that the reimbursement ordered deprives him of his rights under Articles 3 and 5 (Art. 3, 5) of the Convention to a sanction against further possible assaults, as it would be open for the NIO to follow the same procedure.        The Commission notes that, by judgment of 25 June 1991, the High Court of Justice in Northern Ireland, awarded the applicant the sum of £ 7,500 in damages for personal injuries and unlawful treatment inflicted by prison officers.        Insofar as the applicant argues that the compensation of £ 7,500 should be exempted from the application of Article 16 (1) of the 1977 Order and even assuming that he could claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of a violation of his rights under Articles 3 and 5 (Art. 3, 5) of the Convention, the Commission considers that the Convention does not include any provision to the effect that compensation awards for non-pecuniary damages awarded by domestic courts are to be exempted from the application of Article 16 (1) of the 1977 Order or any other form of attachment under domestic law.        The answer to the question whether or not such awards, including awards made by the European Court under Article 50 (Art. 50) of the Convention, are to be exempted from attachment is left to the national authorities acting under the relevant domestic law (cf., Eur. Court HR, Allenet de Ribemont v. France judgment of 7 August 1996, to be published in Reports 1996, para. 19).        Unlike the situation in the Ringeisen case, it has not been argued nor has it appeared that, under domestic law, compensation awards for non-pecuniary damages are exempted from attachment (Eur. Court HR, Ringeisen v. Austria judgment (Article 50) (Art. 50) 22 June 1972, Series A no. 15, p. 10, para. 27; and Ringeisen v. Austria judgment (interpretation of judgment of 22 June 1972) of 23 June 1973, Series A no. 16, p. 9, para. 15).        It follows that also this part of the complaint must be rejected for being incompatible ratione materiae with the provisions of the Convention.        Insofar as the applicant complains that the reimbursement order constitutes a deprivation of protection against possible further assaults, the Commission considers that the above finding does not exempt States from their obligation to provide adequate and effective protection against assault or other treatment prohibited under Article 3 (Art. 3) of the Convention, including the institution of disciplinary or criminal proceedings in appropriate cases.        It follows that this part of the complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant finally complains under Article 14 (Art. 14) of the Convention that he has been discriminated against, as the NIO does not claim reimbursement from other persons in similar circumstances.        Article 14 (Art. 14) of the Convention provides:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        The Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions.   Although the application of Article 14 (Art. 14) does not necessarily presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (cf. No. 19819/92, Dec. 5.7.94, D.R. 78 p. 88).        Having found that the Convention does not contain any provision to the effect that compensation awards for an established violation of the prohibition of a treatment contrary to Article 3 (Art.   of the Convention be exempted from the application of Article 16 (1) of the 1977 Order or any other form of attachment under domestic law, the alleged discrimination consequently falls outside the scope of Article 14 (Art. 14) of the Convention.        It follows that also this part of the application must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention for being incompatible ratione materiae with the provisions of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber