CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 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. 32819/96                        by C. C.                        against the United Kingdom          The European Commission of Human Rights sitting in private on 1 December 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission          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 June 1996 by C. C. against the United Kingdom and registered on 29 August 1996 under file No. 32819/96;   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      1 May 1997 and the observations in reply submitted by the      applicant on 18 July 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Jamaican citizen who was born on 29 December 1926. He is currently in prison in Brixton and is represented by Philip Leach, a solicitor practising in London.   A.    Particular facts of the case        The facts of the case, as submitted by the parties, may be summarised as follows. In 1987 the applicant was convicted of manslaughter and sentenced to 4 years imprisonment.        On 2 January 1996 the applicant was arrested by the police on the basis of the alleged offence of attempted rape of his next door neighbour. The applicant maintained that he had sexual intercourse with the woman with her consent. He was brought before the Magistrates' Court on 4 January 1996. While the applicant had instructed his solicitor to apply for bail on his behalf, the Magistrate would not consider a bail application in view of section 25 of the Criminal Justice and Public Order Act 1994. Accordingly, the applicant was remanded in custody by the Magistrate.        Initially, the applicant was held at Wandsworth prison and he was then transferred to Brixton prison on 9 May 1996. He claims that the pre-trial prison regime was difficult in light of his age and failing health, referring to chronic bronchitis which became worse, to high blood pressure and to his pension having been stopped. He also claims that for the first eight days in Wandsworth he was confined to his cell for 23 hours each day and that, subsequently, he agreed to a suggestion from the prison authorities that (as a person charged with attempted rape) he should be segregated from other prisoners.        The applicant was convicted of attempted rape and of assault occasioning actual bodily harm in October 1996 and on 17 January 1997 he was sentenced, the trial court deducting the period of his pre-trial detention from the sentence imposed pursuant to section 67 of the Criminal Justice Act 1967. On 11 July 1997 the Court of Appeal rejected his appeal against sentence.   B.    Relevant domestic law and practice        The period of pre-trial detention is deducted from the sentence subsequently handed down pursuant to section 67 of the Criminal Justice Act 1967.        The Bail Act 1976 ("the 1976 Act") provides that an accused shall be granted bail unless the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person (paragraph 2 of Schedule 1 to the 1976 Act).        Pursuant to paragraph 9 of Schedule 1 of the 1976 Act, in taking the above decision, the court shall have regard to such of the following considerations, as well as to any other considerations, as appear to that court to be relevant:   -     the nature and seriousness of the offence or default (and the      probable method of dealing with the defendant for it);   -     the character, antecedents, associations and community ties of      the defendant;   -     the defendant's record as regards the fulfilment of his      obligations under previous grants of bail in criminal      proceedings; and   -     except in the case of a defendant whose case is adjourned for      inquiries or a report, the strength of the evidence of his having      committed the offence or having defaulted.        According to paragraph 9A of that schedule, if a defendant (who has been charged with murder, manslaughter, rape, attempted murder and attempted rape) is granted bail and representations have been made as regards the matters mentioned in paragraph 2 of Schedule 1 to the 1976 Act, the court must state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.        Section 25 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act") came into force on 10 April 1995 and, insofar as relevant, provides as follows:        "1. A person who in any proceedings has been charged with or      convicted of an offence to which this section applies and in      circumstances to which it applies shall not be granted bail in      those proceedings.        2. This section applies, subject to subsection 3 below, to the      following offences, ... -              (a) murder;              (b) attempted murder;              (c) manslaughter;              (d) rape and              (e) attempted rape.        3. This section applies to a person charged with or convicted of      any such offence only if he has been previously convicted by or      before a court in any part of the United Kingdom of any such      offence or of culpable homicide and, in the case of a previous      conviction of manslaughter or culpable homicide, if he was then      sentenced to imprisonment or, if he was then a child or young      person, to long-term detention under any of the relevant      enactments."        Section 22 of the Prosecution of Offences Act 1985 enables regulations to be made providing for maximum periods during which an accused may be detained in custody during the preliminary stages of criminal proceedings. The Prosecution of Offences (Custody Time Limits) Regulations 1987 fixed such periods and was amended by the Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 1995 and by section 71 of the Criminal Procedure and Investigations Act 1996. These regulations, as amended, provide that the maximum period a person may be detained between his first appearance at a Magistrates' Court and his committal for trial is 70 days and that the maximum period of detention between committal and the start of the trial is 112 days. In each case, the period may be extended by a court on the application of the prosecution only if the court is satisfied that there is good and sufficient cause for doing so and that the prosecution has acted with all due expedition. While these provisions apply even in a case to which section 25 of the 1994 Act applies, in such a case bail cannot be granted on the expiry of the time-limit - the trial must commence on or before the expiry of the time-limit or any extension thereof.     COMPLAINTS   1.    The applicant complains that the Magistrate, who would normally consider the particular circumstances of each case and decide to grant bail or not, had no such power in his case since all discretion was taken away by section 25 of the 1994 Act. Accordingly, he was not "brought promptly before a judge or other officer authorised by law to exercise judicial power" and had no "right to release pending trial" within the meaning of Article 5 para. 3 of the Convention. The applicant also invokes Article 5 para. 5 of the Convention in this respect.   2.    The applicant also complains that the provisions of Article 25 of the 1994 Act constitute a violation of his right to be presumed innocent under Article 6 para. 2 of the Convention and imposed a heavier penalty on him for manslaughter than was initially applicable at the time of his conviction for that offence contrary to Article 7 of the Convention because section 25 led to automatic pre-trial detention once he was subsequently charged.   3.    The applicant further complains under Article 14 that section 25 of the 1994 Act discriminates against him because, as a person previously convicted of manslaughter, he had automatically no right to bail whereas those convicted of other serious offences have the right to have the particular circumstances of their case considered by a Magistrate when the issue of bail arises pursuant to a subsequent charge.   4.    Finally, the applicant complains under Article 13 of the Convention that he has no effective domestic remedy as regards the alleged violations of Articles 5, 6, 7 and 14 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 28 June 1996 and was registered on 29 August 1996.        On 25 February 1997 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the complaints under Article 5 paras. 3 and 5, under Article 14 in conjunction with Article 5 para. 3 and under Article 13 in connection with that complaint under Article 14 of the Convention.        The Government's observations were received on 6 May 1997. The applicant's observations in response were received on 21 July 1997, after one extension of the time-limit fixed for that purpose.     THE LAW        The applicant complains that section 25 of the 1994 Act took away all power of the Magistrates' Court to decide whether, in accordance with certain legal criteria and in view of the particular facts of his case, he should have been released pending trial. He invokes Article 5 para. 3 together with Article 6 para. 2 and Article 7 (Art. 5-3+6-2, 5-3+7) of the Convention in this respect. He further claims that he has no right to compensation or to an effective domestic remedy in these respects and he invokes Article 5 para. 5 and Article 13 (Art. 5-5, 13) of the Convention. Furthermore, he considers section 25 discriminatory and in breach of Article 14 (Art. 14) since it amounts to an unjustifiable difference in treatment of certain categories of accused.   1.    Article 25 (Art. 25) of the Convention        The Commission notes that the period of the applicant's pre-trial detention was deducted from his sentence pursuant to section 67 of the Criminal Justice Act 1967. The Commission does not consider that this constitutes an acknowledgment of any violation in that respect and, accordingly, the applicant can claim to be a victim of a violation of the Convention (see, for example, Eur. Court HR, Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, para. 38).   2.    Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) of the Convention        Article 5 paras. 3 and 5 (Art. 5-3, 5-5), insofar as relevant, reads as follows:        "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 period of time or to release pending trial. ...        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 13 (Art. 13) of the Convention reads as follows:        "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."        Article 14 (Art. 14) of the Convention reads as follows:        "The enjoyment of the rights and freedoms set forth in the      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."        In the first place, the Government submit that, prior to section 25 of the 1994 Act coming into force, the courts only rarely granted bail to a person accused of a serious crime who had a previous conviction for an earlier serious crime. At the same time the Government point out that the purpose of section 25 is to avoid an unacceptable possibility of the relevant court making an error of judgment in its assessment of risk in a case falling within the circumstances of section 25 with the serious consequences for the victims of the alleged crime or for the proper administration of justice that would entail.        Secondly, the Government also argue that "trial within a reasonable time" and "release pending trial" are alternatives. It is submitted that nothing in Article 5 para. 3 (Art. 5-3) prohibits a State from deciding that, in particular circumstances, it would be an unacceptable risk to release such a defendant so long as that person receives a speedy trial, it being noted that the applicant does not contest that he was tried within a reasonable period of time.        Thirdly, the Government further consider, inter alia, that the Magistrates' Courts remain the "judge or other officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 (Art. 5-3) in view of the remaining powers of those courts including the power to consider at committal hearings whether there was sufficient evidence to continue the proceedings and, if not, to dismiss the case, to consider whether the accused has been properly charged and treated and, if not, to consider whether to dismiss the case for abuse of process and order release and to ensure that the trial takes place "speedily" (the "remaining powers" of the Magistrates' Court). When Parliament can require the Magistrates' Court to have regard to specified substantive criteria when considering bail (and thereby significantly reduce its discretion), it is consistent for Parliament to determine that, in a limited category of cases, bail is inappropriate so long as the accused retains the protection of the remaining powers of the Magistrates' Court.        In any event, the United Kingdom Parliament is entitled to conclude that it is appropriate to deny bail to a person accused of a certain grave crime who has been previously convicted of such a grave crime and who, in such circumstances, presents too substantial a risk of re-offending, absconding, interfering with witnesses or otherwise obstructing justice and so causing serious harm to others or to the proper administration of justice.        As to the jurisprudence of the Court on Article 5 para. 3 (Art. 5-3) (certain cases having been referred to by the applicant in his application) the Government submit, in particular, that those cases concerned accused persons who did not have access to a court with a power to order release in any circumstances or with the power to ensure a speedy trial. None of the Court's cases on Article 5 para. 3 (Art. 5-3) were concerned with whether a State is entitled to deny bail for persons in the circumstances outlined in section 25 where the accused has the right of access to a Magistrates' Court with the remaining powers outlined above. Moreover, the previous judgments of the Court on Article 5 para. 3 (Art. 5-3) of the Convention were concerned with examples of arbitrary detention and there is nothing arbitrary about section 25 of the 1994 Act it being a carefully considered and rational scheme advancing the purposes of section 25 outlined above. Even if it were possible to argue that the application of section 25 may be unfair in some circumstances, there was nothing arbitrary in the present case and it is not the function of the Convention organs to consider section 25 in the abstract.        As regards the complaint under Article 5 para. 5 (Art. 5-5) of the Convention, the Government maintain, in the first place, that there has been no breach of Article 5 para. 3 (Art. 5-3) and, consequently, no breach of paragraph 5 of Article 5 (Art. 5-5). In the alternative, the Government argue that, since the applicant's pre-trial detention was deducted from his sentence, the applicant had no right to compensation.        As regards Article 14 of the Convention in conjunction with Article 5 para. 3 (Art. 14+5-3), the Government refer to the Stubbings judgment (Eur. Court HR, Stubbings v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decision for 1996-IV, pp. 1506-07, para. 70) arguing that it is well within the State's margin of appreciation to conclude that persons who have been previously convicted of a grave offence should be differently treated for the purposes of bail once they are accused of having committed another such offence and that it would be inappropriate to grant bail in view of the risks involved for the public and the proper administration of justice.        As regards Article 13 (Art. 13) of the Convention, the Government submit that Article 13 (Art. 13) is not applicable since the application does not involve any arguable complaints of breaches of the Convention (Eur. Court HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131). It is also argued that, in any event, Article 13 (Art. 13) does not go so far as to guarantee a remedy allowing a State's laws as such to be challenged before a national authority on the grounds of being contrary to the Convention, the Government citing the James and Others together with the Lithgow and Others judgments (Eur. Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98 and Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102).        Accordingly, the Government consider that these complaints are inadmissible as manifestly ill-founded or, alternatively and insofar as they are admissible, they do not disclose a violation of the Convention.        The applicant comments, in the first place, on the Government's submissions on the relevant domestic law and practice. He considers that the Government's reference to the practice before section 25 of the 1994 Act came into force implies that the courts did occasionally grant bail to persons now falling within the scope of section 25. As to the Government's outline of the purpose of section 25 (the avoidance of judicial error in serious cases), the applicant points out that the Government give no examples of such error, do not submit that such errors were made in the past, conducted no relevant study in that respect prior to the enactment of section 25 and could not give any examples of judicial error when so requested during the debate on section 25 in the House of Lords. Accordingly, the risk of judicial error to which the Government refer is hypothetical and not a real risk. Neither is there any analysis disclosed by the Government which would indicate that those categories of offenders included within section 25 are more likely to, for example, abscond. This renders section 25, in addition to being hypothetical, arbitrary.        The Government's assertion that States are entitled to decide that the release on bail of a certain category of persons would present an unjustifiable risk to the public is, according to the applicant, also illogical and indefensible. The Government appear to consider that a previous serious conviction and a subsequent charge of a similar offence is sufficient justification for section 25 of the 1994 Act but the applicant points out that this assertion is made without any research, evidence or any regard to the individual facts of the case. It is a blanket approach that is indefensible when the fundamental right to liberty is involved and where there exists a well-established procedure by which courts assess the facts of each case in order to decide to release on bail or not. Moreover, the Government imply, without any evidence, that there is a causal link between section 25 defendants and a substantial risk on release.        The applicant also considers the Government's reference to time- limits as regards pre-trial detention misleading. The time-limits are easily and often extended, the arraignment is deemed to be the start of the trial even though the trial proper may not take place for weeks or months thereafter, bail cannot be granted in section 25 cases and even where there is a clear breach of custody time-limits no claim for unlawful imprisonment or release can be brought (Olotu v. Home Office 1996 No. 0117).        Secondly, and as to the Government's observations on the admissibility and merits of his complaints, the applicant points out, inter alia, that the Government's submission that trial within a reasonable time or release are alternatives is not sustainable in view of the Wemhoff judgment (Eur. Court HR, Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7). On the contrary, the accused has the right to a trial within a reasonable period of time and to a judicial determination of the question of pre-trial detention. Furthermore, the Government's suggestion that the remaining powers of the Magistrate suffice for the purposes of Article 5 para. 3 (Art. 5-3) ignores the requirements of that Article outlined in the Schiesser judgment (Eur. Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34). The remaining powers are also not relevant to the question at issue namely, the right to a judicial determination of the necessity of pre-trial detention.        The applicant also takes issue with the Government's attempts to distinguish the cases of the European Court of Human Rights on which he relied in his application noting that the Court has never approved automatic pre-trial detention for a class of accused without any regard to their particular circumstances. Moreover, in the absence of any research prior to its enactment and of any examples of judicial error, the Government's assertion that section 25 is "carefully considered and rational" requires further explanation. As to the Government's submission about not considering the case in the abstract, the applicant points out that his case is not about an abstract point - he has certain rights under Article 5 para. 3 (Art. 5-3) as to a judicial consideration of the need for his being detained pre-trial and he was not afforded this possibility. It is therefore inappropriate for the Government now to seek to second-guess what a court's decision would have been had it not deprived the applicant of that judicial determination and decision. In any event, the applicant submits that he had a realistic chance of being granted bail.        Accordingly, the applicant submits that his complaints under Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) are admissible and give rise to a violation of those Articles of the Convention.        In view of the relevant submissions of the applicant, the Commission considers that the complaint under Article 14 is raised in conjunction with Article 5 para. 3 (Art. 14+5-3) of the Convention. Similarly, it considers that the complaint under Article 13 (Art. 13+5-3) has been raised in connection with Article 5 para. 3 and with Article 14 (in conjunction with Article 5 para. 3 (Art. 14+5-3)). In such circumstances and in light of the above submissions, the Commission considers that the application raises serious issues under Articles 5 paras. 3 and 5, 13 and 14 (Art. 5-3, 5-5, 13, 14) of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.   3.    Articles 6 para. 2 and 7, 13 and 14 (Art. 6-2, 7, 13, 14) of the Convention        The applicant complains that the provisions of Article 25 (Art. 25) of the 1994 Act constitute a violation of his right to be presumed innocent under Article 6 para. 2 (Art. 6-2) of the Convention and imposed a heavier penalty on him for manslaughter than was initially applicable at the time of his conviction for that offence contrary to Article 7 (Art. 7) of the Convention because section 25 led to automatic pre-trial detention once he was subsequently charged. The applicant has also invoked Article 13 (Art. 13) in those respects as well as Article 14 (Art. 14) of the Convention.        Article 6 para. 2 (Art. 6-2) reads as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to the law."        Article 7 para. 1 (Art. 7-1) reads as follows:        "No one shall be held guilty of any criminal offence on account      of any act or omission which did not constitute a criminal      offence under national or international law at the time when it      was committed. Nor shall a heavier penalty be imposed than the      one that was applicable at the time the criminal offence was      committed."        The Government submit that Article 6 para. 2 (Art. 6-2) of the Convention is concerned with the manner in which guilt is determined at trial and not with the question of whether the accused should be detained pending trial, a matter to be addressed under Article 5 (Art. 5) of the Convention. In any event, the applicant has not been denied bail because of a presumption of guilt but because Parliament has considered that it would be inappropriate for the public to run the risk of further offences being committed or of an interference with the proper administration of justice. As regards Article 7 (Art. 7) of the Convention, the Government submit that pre-trial detention is not a finding of guilt or indeed punishment in relation to a criminal offence for the purposes of Article 7 (Art. 7) of the Convention.        The Commission considers that section 25 of the 1994 Act constitutes an assessment by Parliament of the risk attaching to the release on bail of a certain category of accused. This risk assessment falls to be considered under Article 5 (Art. 5) of the Convention and it does not give rise to an issue under Article 6 para. 2 (Art. 6-2) of the Convention, the latter being concerned with the applicant's guilt or innocence for the offence with which he was charged (mutatis mutandis, No. 9167/80, Dec. 15.10.81, D.R. 26, p. 248, at p. 250).        As to Article 7 (Art. 7) of the Convention, the applicant argues that the effect of section 25 of the 1994 Act is a retroactive increase in the penalty for manslaughter. However, the Commission notes that the penalty for manslaughter remains the same and, while section 25 of the 1994 Act means automatic pre-trial detention, this arises only in the context of an alleged second offence. That subsequent pre-trial detention relates to and is to be evaluated in the context of the subsequent charge and Article 5 (Art. 5) of the Convention and it does not give rise to an issue under Article 7 (Art. 7) of the Convention.        The applicant's complaints under Articles 6 para. 2 and 7 (Art. 6-2, 7) of the Convention are, accordingly, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        Moreover, and insofar as the applicant raises Article 14 in conjunction with Articles 6 para. 2 and 7 (Art. 14+6-2, 14+7), the Commission notes its finding above, that the applicant's complaints do not fall within the ambit of Articles 6 para. 2 or 7 (Art. 6-2, 7) of the Convention in which case Article 14 (Art. 14) of the Convention is not applicable (Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 15-16, para. 32). This complaint under Article 14 (Art. 14) of the Convention is therefore also inadmissible as incompatible ratione materiae with the provisions of the Convention.        As to the complaint under Article 13 (Art. 13), the Commission considers, in view of its reasoning above, that the applicant does not have an arguable claim as regards his complaints under Articles 6, 7 or 14 (Art. 6, 7, 14) (Eur. Court HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131). This complaint under Article 13 (Art. 13) of the Convention is therefore 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,      DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints about his automatic pre-trial detention,      about being discriminated against in that respect and about his      not having any right to compensation or any domestic remedy in      those respects; and        unanimously,      DECLARES INADMISSIBLE the remainder of the application             M. de SALVIA                         S. TRECHSEL           Secretary                           President       to the Commission                    of the Commission