CEDH · CASELAW;REPORTS;ENG — 3 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 25901/94                        Andrew Graham Russell                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 3 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-8) . . . . . . . . . . . . . . . . . . . . . .1   II.   ESTABLISHMENT OF THE FACTS      (paras. 9-22). . . . . . . . . . . . . . . . . . . . . .2   III. OPINION OF THE COMMISSION      (paras. 23-36) . . . . . . . . . . . . . . . . . . . . .4        A.    Complaint declared admissible           (para. 23). . . . . . . . . . . . . . . . . . . . .4        B.    Point at issue           (para. 24). . . . . . . . . . . . . . . . . . . . .4        C.    As regards Article 6 para. 1 of the Convention           (paras. 25-36). . . . . . . . . . . . . . . . . . .4             CONCLUSION           (para. 36). . . . . . . . . . . . . . . . . . . . .5   APPENDIX I :    PARTIAL DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY OF THE APPLICATION . .6   APPENDIX II :   FINAL DECISION OF THE COMMISSION                AS TO THE ADMISSIBILITY OF THE APPLICATION . 12   I.    INTRODUCTION   1.    The present Report concerns Application No. 25901/94 introduced on 12 October 1994 against the United Kingdom and registered on 9 December 1994.   2.    The applicant is a British citizen, born in 1962 and currently serving a prison sentence in the United Kingdom.   3.    The applicant is represented before the Commission by Messrs. B. M. Birnberg & Co., solicitors practising in London.   4.    The respondent Government are represented by Mr. I. Christie, Agent of the Government of the United Kingdom.   5.    The application was declared partly inadmissible on 28 February 1996.   On the same date, the Commission decided to communicate the complaint concerning the length of the proceedings to the Government.   Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 9 April 1997.   The decisions on admissibility are appended to this Report.   The Government submitted further observations on the merits of the case on 19 June 1997.   6.    Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 3 December 1997 in accordance with Article 31 para. 1 of the Convention, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                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   7.    In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the United Kingdom.   8.    The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.   ESTABLISHMENT OF THE FACTS   9.    The applicant was arrested on 31 January 1988 and questioned in connection with an escape from Gartree prison, Leicestershire, in December 1987.   On 3 February 1988 he was again questioned, in the presence of his solicitor, in connection with the escape, and also in connection with his responsibility for a robbery which had taken place in London on 13 January 1988.   10.   The proceedings relating to the escape continued, but the applicant heard nothing more about the robbery.   On 15 November 1988 the applicant's solicitors asked the Crown Prosecution Service (CPS) whether any steps were to be taken in connection with the robbery.   The CPS replied on 5 December 1988 that the prosecutor had "decided that there is insufficient evidence against [the applicant] to justify prosecution".   11.   On 19 June 1989 the applicant was convicted of offences relating to the escape from Gartree prison.   12.   On 25 July 1989 the CPS wrote to the applicant's solicitors that they had now decided to prosecute the applicant in respect of the robbery.   They said that "no steps [were] taken in this matter earlier to avoid publicity while your client's trial in respect of the ... escape was being held ...".   13.   On the following day, 26 July 1989, the CPS applied to a High Court judge, ex parte and without giving notice to the applicant's solicitors, for the issue of a voluntary bill of indictment.   In the supporting affidavit no reference was made to the letter of 5 December 1988.   The application was granted and a voluntary bill of indictment was issued charging the applicant with, inter alia, robbery.   14.   The case was initially listed for trial on 18 April 1990.   After an unsuccessful application by the applicant to change the trial venue, the fixture was moved to 30 May 1990.   At the commencement of the trial the applicant sought to stay the proceedings and submitted to the trial judge that the prosecution was an abuse of process on the basis of delay coupled with the prejudice caused by the reversal of the CPS's decision not to prosecute.   This submission was rejected by the trial judge on 1 June 1990.   15.   On 6 June the applicant sought leave from the Divisional Court to apply for judicial review, in respect of the trial judge's refusal to stay the proceedings.   The Divisional Court adjourned the application, to await the outcome of a related case concerning the jurisdiction of the Divisional Court in this area.   It was held on 15 November 1990, in this related case, that the Divisional Court did have jurisdiction over such matters.   On 11 July 1991 the application to the Divisional Court, for leave to apply for judicial review, was heard and leave was granted.   16.   On 7 November 1991 the Divisional Court heard the substantive judicial review application and ruled that there had been no abuse   of process.   17.   The case was listed for mention on 14 February 1992, when the trial judge fixed the trial for 16 March 1992.   18.   On 16 March 1992 the applicant's trial commenced, but the trial was adjourned to 19 March 1992 for the applicant to instruct counsel (the applicant had until that point chosen not to be represented by counsel).   19.   On 19 March 1992, the applicant's trial resumed and he was represented by leading and junior counsel.   20.   The applicant was convicted, inter alia, of robbery on 25 March 1992.   21.   The applicant applied for leave to appeal against conviction and sentence on 1 May 1992.   The applicant made two requests (4 November 1992 and 18 January 1993) for the consideration of the appeal to be delayed.   On 28 February 1993 leave to appeal against conviction and sentence was refused by a single judge.   On 25 March 1993 the applicant gave notice that he wished to renew his application before the full court. In June 1993 and on 23 August 1993 the applicant's solicitors sought extensions of time, on the grounds of lack of funds. On 10 October 1993 the applicant requested a further deferral in order to instruct counsel. The application was listed to be heard on 19 April 1994 although, subsequent to counsel's written request, the case was relisted for 13 May 1994.   22.   On 13 May 1994 the applicant was represented by counsel.   His application for leave was refused by the full Court of Appeal.   The Court of Appeal, agreeing with the single judge, considered that there was ample evidence to put before the jury, and found no material irregularity in the case.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   23.   The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.    Point at issue   24.   The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   25.   The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :        "In the determination of   ... any criminal charge against him,      everyone is entitled to a ... hearing within a reasonable time      by [a] ... tribunal ..."   26.   The proceedings in question concerned the criminal charge of robbery and related offences brought against the applicant and they accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   27.   The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).   28.   According to the respondent Government, the length of the period in question is due to the complexity of the preliminary issue in the case concerning the question whether the applicant's trial should proceed despite the initial indication by the Crown Prosecution Service in 1988 that there would be no prosecution.   The Government also consider that the applicant's conduct contributed to the length of the proceedings.   The Government further argue that the proceedings began for the purposes of Article 6 para. 1 (Art. 6-1) only when he was charged on 26 July 1989.   The applicant contests the Government's submissions.   29.   The Commission considers that the proceedings began on 3 February 1988 when the applicant was first questioned about the robbery.   That date is the date on which the applicant's situation was substantially affected by the proceedings against him (Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24, para. 46 and Eckle v. the Federal Republic of Germany judgment of 15 July 1982, Series A no. 51, p. 33, para. 73).   The proceedings ended on 13 May 1994 when the applicant was denied leave to appeal by the full Court of Appeal (see above mentioned Eckle v. Germany judgment, p. 34, para. 76).   They thus lasted a total of just over six years and three months.   30.   The Commission considers that the present case in itself had no special complexity.   However, the applicant's interlocutory application to stay the proceedings as an abuse of process, and the subsequent judicial review of the judges' rejection of this application, did lengthen the proceedings considerably.   31.   The Commission considers that the delay prior to the initial listing of the trial in April 1990 is attributable to the competent judicial authorities, even though it is not clear that proceedings were pending between 5 December 1988 and 25 July 1989.   32.   The interlocutory proceedings which the applicant brought impeded the progress of the case, as these proceedings were being dealt with from 30 May 1990 (when the application was first made) to 7 November 1991 (when the Divisional Court ruled that there had been no abuse of process).   In that period, the trial judge refused the applicant's submission, the Divisional Court dealt with a related case, leave to   apply for judicial review was granted and the application was refused.   Although the Government remain responsible for the length of these proceedings, the Commission considers that it cannot be said that they lasted unreasonably long, given that the applicant had initiated them and that the interlocutory proceedings had to be adjourned for six months pending the outcome of a related case.   33.   The period between the dismissal of the "abuse of proceedings application" on 7 November 1991 and the conclusion of the applicant's trial was less than five months which the Commission considers to be reasonable.   34.   The applicant was convicted on 25 March 1992 and applied for leave to appeal against conviction and sentence on 1 May 1992.   There was a two year delay before the application was refused by the full Court of Appeal on 13 May 1994.   The Commission notes that this period can be split into two parts, the period from 1 May 1992 to 23 February 1993 when leave was refused by a single judge, and the period from 25 March 1993, when the applicant appealed to the full court, to the final decision on 13 May 1994. During the first period (11 months) the applicant made two requests that the consideration of the appeal be delayed (4 November 1992 and 18 January 1993). In the subsequent period (approximately 14 months), the applicant's solicitors sought three time extensions (in June 1993, 23 August 1993 and 10 October 1993) and the applicant's counsel sought a further deferral on 19 April 1994.   In the circumstances the Commission considers that this two year delay, between the application to appeal against conviction and sentence, and the final refusal of this application by the Court of Appeal, was largely attributable to the applicant's own conduct of the case.   35.   Having regard to all the circumstances, and to the fact that in a period of something over six years the courts dealt with the substantive proceedings at three levels - the first instance, the leave to appeal proceedings and then the substantive appeal - and the interlocutory question of whether the proceedings constituted an abuse of process was also determined by the Divisional Court, the Commission concludes that the proceedings as a whole cannot be said to have exceeded the "reasonable time" requirement.        CONCLUSION   36.   The Commission concludes, by 9 votes to 8, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.     M.F. BUQUICCHIO                             J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber