CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.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. 34723/97                       by Spencer James MELLORS                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  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 11 November 1996 by Spencer James MELLORS against the United Kingdom and registered on 4 February 1997 under file No. 34723/97;        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 1964. He is currently serving a prison sentence in Shotts Prison, Scotland. Before the Commission the applicant is represented by Mr. J. Carroll, a solicitor practising in Glasgow. The facts of the case, as submitted by the applicant, may be summarised as follows:        On 8 December 1995 the applicant was committed at Glasgow Sheriff Court on a charge of rape. Warrants were granted by the Sheriff to obtain blood and saliva samples for DNA profiling and teeth impressions for comparison with marks found on the victim. The applicant was then present and represented.        Between 15 and 21 February 1996 attempts were made to execute the warrant to which the applicant did not consent. According to the applicant no violence was involved on his part. In the face of the applicant's refusal to give consent (which was video-taped by the police) the medical practitioners refused to execute the warrants.        The applicant was subsequently, on 23 February 1996, charged with attempting to defeat the ends of justice on the ground that he repeatedly resisted, obstructed, hindered and frustrated the execution of the warrants, and with a contravention of Section 3 (1)(b) of the Bail Etc. (Scotland) Act 1980.        The applicant challenged the charge of attempting to defeat the ends of justice by a Bill of Suspension to the High Court. The applicant claimed that refusing to give consent to the execution of a warrant did not constitute the criminal offence of defeating the ends of justice. The Bill was refused on 25 April 1996.        In the meantime, on 17 April 1996, without notice being given to either the applicant or his legal representative, the prosecutor obtained from the Sheriff at Glasgow a warrant to take hair samples from the applicant for the purposes of DNA profiling.        On the same day, 17 April 1996, police officers visited the applicant at Barlinnie Prison in order to bring him to the Police Station for the purposes of executing the warrant. According to the applicant the police officers were, with the exception of one or two, dressed in full body armour, armoured helmets and plated gloves. The applicant was dragged into the view of a video camera and forcibly put to the floor. His legs were bent over his back in a "figure of four" lock and his arms were handcuffed behind his back. He was then carried bodily with his face towards the floor and his body weight intermittently supported in an allegedly degrading and painful fashion by his arms, neck, head and legs. The applicant reacted by struggling, spitting in the direction of the legs of one of the officers concerned and making an initial gesture of an attempt to bite a glove hand which was being forced under his chin. He was put down on the floor of a police van and was transported from the Prison to Partick Police Station, a journey of some 25 minutes, at high speed.        The applicant was subsequently charged under Section 41(1)(a) of the Police (Scotland) Act 1967, on the ground that he resisted, obstructed, molested, and hindered two members of the police in their attempts to transport him and so attempted to defeat the ends of justice.          The applicant further challenged the warrant of 17 April 1996 (by a Bill of Suspension to the High Court) to take hair samples and sought an order that the samples should be destroyed on the ground that the warrant was irregularly obtained. The essence of the complaint was that the warrant should have been intimated to the applicant so that he could have challenged it before it was executed. On 21 June 1996 the High Court refused to pass the Bill and held that although intimation would in normal circumstances be preferable, in the present case, and considering the applicant`s previous behaviour, it would not be appropriate and that the non-disclosure was in fact necessary for the successful implementation of the warrant. It upheld the Sheriff's decision.        The applicant stood trial before the High Court at Glasgow and was convicted on all charges on 2 July 1996. He is now serving a sentence of 9 years and 9 months imprisonment.        The applicant applied for leave to appeal against conviction. Leave was granted only in connection with the rape charge and the appeal has still to be heard.   COMPLAINTS        The applicant complains, under Article 3 of the Convention, about inhuman and degrading treatment by the police officers in the execution of the warrant to take hair samples. He further complains that he was denied a fair hearing in violation of Article 6 and in particular para. 3 (c) of the Convention as he was excluded, as was his representative, from a critical stage in the proceedings in which the prosecution obtained a warrant to take hair samples from him. Finally, the applicant alleges a violation of Article 7 in that he was charged and convicted simply for his not wanting to consent to the execution of a warrant which allegedly did not constitute a criminal offence in the Scottish law.   THE LAW   1.    The applicant complains under Article 3 (Art. 3) of the Convention about the manner in which the warrant to take his hair samples was executed by the police.        Article 3 (Art. 3) of the Convention provides as follows:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment".        The Commission recalls that under Article 26 (Art. 26) the Convention it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. It is true that the applicant did challenge, by way of a Bill of Suspension, the warrant permitting the police to obtain his hair samples. However, the warrant was challenged as to the manner in which it was granted (on the ground that it had not been lawfully obtained as it was not intimated to the applicant or his representative) and not as to how it was executed (that its execution had been inhuman or degrading). Furthermore, the applicant has not brought an action for damages by which he could obtain solatium against the police officers executing the warrant.            Accordingly, the applicant has failed to put this complaint to the domestic authorities, and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) for failure to comply with the requirement of exhaustion of domestic remedies.   2.    The applicant further complains, invoking Article 6 and in particular para. 3 (c) (Art. 6, 6-3-c) of the Convention, that he was deprived of the right to a fair hearing as he and his legal representative were excluded from the proceedings at a critical stage which involved the obtaining of the warrant to take hair samples.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:        "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...        3.     Everyone charged with a criminal offence has the following      minimum rights:        ...            c.     to defend himself in person or through legal      assistance of his own choosing ...        The Commission first notes that the applicant challenged the fact that he and his representative were not informed of the granting of a warrant and requested a Bill of Suspension. The High Court found however that, although disclosure would in normal circumstances be preferable, non-disclosure was in the present case desirable and indeed necessary for the successful implementation of the warrant.        The Commission recalls that Article 6 (Art. 6) of the Convention applies to the determination of "civil rights and obligations" and of "criminal charges". In the present case, the granting of a warrant did not in itself determine a criminal charge against the applicant, and Article 6 (Art. 6) does not therefore apply to the proceedings by which the warrant was granted. The proceedings as a whole, that is the proceedings in which the applicant was charged of rape and attempt to defeat the ends of justice do, however, determine criminal charges, and the Commission may therefore assess whether the use of evidence, obtained by the allegedly unlawful warrant, could have affected the fairness of those proceedings (see Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, paras. 46-49).        The Commission notes however, that the applicant`s appeal regarding his conviction for rape is still pending, and any allegations as to unfairness of the overall proceedings are therefore premature.        It follows that this part of the application is manifestly ill- founded and must be rejected under Article 27 para. 2 (Art. 27-3) of the Convention.   3.    The applicant finally complains under Article 7 (Art. 7) of the Convention that he was convicted, on account of his refusal to give consent to the execution of the blood/saliva and teeth impression warrant, for a crime which did not constitute a criminal offence at the time it was committed.        Article 7 (Art. 7) of the Convention, insofar as relevant, provides as follows:        "1. 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..."        Article 7 para. 1 (Art. 7-1) of the Convention prohibits a finding of guilt for a criminal offence on account of acts which did not constitute an offence when the acts were committed. The applicant was charged with attempts to defeat the ends of justice. He does not claim that the criminal offence of attempting to defeat the ends of justice did not exist at the time of the alleged offence but rather that he was held guilty of an offence he did not commit. Accordingly, the offence, the applicant was found guilty of, did constitute a criminal offence at the time it was committed. Further, the Commission recalls that it is in the first place for the national authorities to interpret and apply national law (See Eur. Court HR, C.R. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-C, p. 71, para. 40). The applicant submits no convincing argument as to why obstructing police officers in their attempt to execute a warrant should not be included within the concept of attempting to defeat the ends of justice.        It follows, therefore, that this part of the application, too, must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.              M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber