CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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 }                          Application No. 25526/94                       by David ADAMS                       against the United Kingdom          The European Commission of Human Rights sitting in private on 29 June 1998, the following members being present:              MM     S. TRECHSEL, President                  J.-C. GEUS                  M.P. PELLONPÄÄ                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  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 24 August 1994 by David ADAMS against the United Kingdom and registered on 3 November 1994 under file No. 25526/94;          Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      11 April 1996 and the observations in reply submitted by the      applicant on 20 September 1996 and 20 March 1997;   -     the information provided by the Government on 24 February 1998;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Irish citizen born in 1958 and resident in Belfast. He is represented before the Commission by Patricia Coyle, a solicitor practising in Belfast. The facts as submitted by the parties may be summarised as follows.   a.    Particular circumstances of the case        The applicant was arrested in East Belfast at 7.02am on 10 February 1994 under section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989.        i.     The applicant's account of his arrest and subsequent events        The applicant's account of the arrest and the events that followed is as follows:        He had been hiding under a car parked in Belmont Avenue, Belfast and was dragged from under it by approximately 6 members of the Special Branch of the RUC (Royal Ulster Constabulary). The police officers were members of E4A (Special Intelligence Units) and HMSU (Headquarters Mobile Support Unit).        On being dragged from the car, the applicant was forced onto his knees, his hands handcuffed behind his back and a forensic cape placed over him. Almost immediately, the officers began to assault the applicant. He was hit repeatedly over the back of his head and about the body with rifles and was kicked around the body. He was punched a number of times in the face and received one severe blow to the right eye. After that one officer began to bang the applicant's head down on the pavement and to rub his face into the blood on the pavement, saying "You Fenian bastard...for God and Ulster". Other officers shouted similar remarks. The assault lasted approximately 20 minutes.        The applicant was thrown into the back of an armoured car to lie along the back seat where he was continuously punched about the face and side of the head by the policeman sitting next to him who kept shouting, "Keep your head down, you Fenian bastard." The applicant also received blows from an officer sitting in the front of the car.        The applicant arrived at Castlereagh Detention Centre at about 7.30am. He was dragged from the car and thrown into the corner of the Scenes of Crimes Officer's room where he was barraged with a stream of questions and verbally threatened with comments such as "another two days in here and we will sort you out." The applicant was grabbed by the hair and his face banged against the wall. His face was continuously punched.        At about 8.00 to 8.15am, the police officers left the room together leaving the applicant alone, facing the wall in the far corner. The door opened and one officer ran at the applicant's left leg and karate kicked the back of the leg below the knee. A second officer carried out the same action and the first officer repeated it a third time. The applicant collapsed.        Another police officer entered and kicked the applicant in the right knee area. When all the policemen had left, a doctor came to examine the applicant between 8.45 and 9.00am. According to the custody record, the doctor recommended that the applicant be hospitalised immediately. The applicant was detained a further one hour 45 minutes and subjected to a forensic examination before finally being transported to hospital.        As a result of the applicant's ill-treatment by the RUC, the applicant suffered a broken leg, a punctured lung, two broken ribs, extensive bruising to the body and required five stitches to the head.        On 15 February 1994, the applicant was transferred to another hospital.   The senior prison officer refused the hospital's offer of an ambulance and transported the applicant in a prison van. There was no seatbelt in the van and the van was driven at a speed which caused the applicant, with his injuries, severe discomfort.        By letter dated 3 May 1994, the applicant complained to the Northern Ireland Office about the transfer. By reply dated 26 May 1994, the Northern Ireland Prison Service responded that the van was used on security grounds and they were confident that the applicant had suffered no discomfort.        The applicant also complained to the Complaints and Discipline Department of the RUC about his ill-treatment on 21 February 1994.        ii.    Official records and documents relating to the applicant's            arrest and detention        The custody record as completed by the RUC indicates as follows:        10 February 1994      At 7.02 am the applicant was arrested.      At 7.30 am the applicant arrived at Castlereagh Police Office and      placed in a cell numbered BG9.      At 8.50 am the applicant was seen by a doctor.      At 9.00 am a police officer took firearms and explosives swabs,      head hair combing and the applicant's clothing for forensic      examination.      At 10.30 am the applicant was taken by police to Ulster Hospital,      Belfast arriving at 10.50 am.        11 February 1994      At 12.05 am. Mr. B. of Madden & Finucane, the applicant's      solicitors, arrived at the hospital to consult with the      applicant.      At 12.35 pm. Mr. W. of Madden & Finucane consulted with the      applicant.      At 4.04 pm Mr. B. consulted with the applicant.      At 8 pm, a special remand court, presided over by a magistrate      was constituted at the hospital and the applicant was remanded      in custody. Mr. B on behalf of the applicant alleged that the      applicant had been ill-treated and assaulted at the time of      arrest and whilst in custody in Castlereagh, specifically      alleging that his leg had been broken in Castlereagh.          iii.   The applicant's trial and appeal        The applicant was charged on 10 February 1994 with seven offences, inter alia, conspiracy to murder, possession of firearms and explosives. His trial, with co-accused, took place between 26 April and 4 May 1995. The applicant did not give evidence. Forensic evidence relied on by the prosecution included two pairs of gloves found on him after arrest. Fibres from these gloves were microscopically indistinguishable from fibres found on one of the AKM rifles recovered at the scene. On 18 May 1995, the applicant was convicted on all counts and sentenced to 25 years' imprisonment. In passing sentence, the trial judge commented that the applicant and his co-accused were in possession of an array of weapons and were about to commit a murderous attack on someone in the vicinity.   The applicant was described by the trial judge as "a dangerous man" who had been convicted of firearms offences when aged 16 and who had six years later been convicted of further firearms offences and sentenced to 14 years imprisonment (of which he served seven years before being released in 1987).        The applicant appealed against sentence to the Court of Appeal but withdrew the appeal.        iv.    Disciplinary proceedings        On 12 February 1994, Sergeant Crozier, who had attended the remand hearing at which the allegations of ill-treatment had been made, spoke on the telephone to Mr. B. who stated that he would not be elaborating any further on the allegations at this time.        On 14 February 1994, Sergeant Crozier filed a "Complaint against the Police" form setting out the allegations. The same day the Chief Constable appointed Chief Inspector Jenkins of the Complaints and Discipline Branch of the RUC to investigate the complaint.        On 24 February 1994, CI Jenkins spoke to the applicant's solicitors attempting to arrange an interview with the applicant. He was informed that they did not wish the applicant to be interviewed until all the criminal proceedings had terminated.   On 28 February 1994, CI Jenkins sent a letter to the solicitors asking for details of any witnesses or any other evidence they might wish to be considered. No substantive reply was received.        In May and June 1994, four police officers were interviewed under caution; three who had been involved in the arrest and the driver of the police car which took him to Castlereagh. Each interview took place in the presence of a representative of the ICPC (Independent Commission for Police Complaints) who also put questions. Statements were also taken from Sergeant Crozier, Sergeant Rainey (on duty when the applicant arrived at Castlereagh), Constable Hill (who took the items for forensic examination) and Dr. Loane (who examined the applicant at Castlereagh).        On 9 June 1995, Inspector Dorman of the Complaints and Discipline Department of the RUC (replacing CI Jenkins) wrote to the applicant's solicitors requesting to meet with the applicant, in their presence if desired and stating that it might not be possible to carry out a satisfactory investigation until he had had the opportunity to discuss the complaint with the applicant.        On 26 June 1995, the applicant's solicitors informed Inspector Dorman that the applicant did not wish to attend for interview as requested pending other possible proceedings.        On 18 July 1995, Inspector Dorman requested the applicant's solicitors to reconsider the question of interview and repeated the request for any other evidence which the applicant might want considered. No response was received.        On 9 October 1995, the ICPC gave a dispensation in relation to the applicant's complaint under Reg 17 of the RUC (Complaints etc.) Regulations 1988 due to the applicant's failure to co-operate with the investigation of the complaint.        v.     Civil proceedings instituted by the applicant        On 28 June 1995, the applicant's solicitors issued proceedings seeking damages for assault against the Chief Constable of the RUC in the civil courts. The defence of the officers concerned was that the injuries which the applicant sustained occurred in his attempts to evade arrest (including diving onto tarmac or concrete under a vehicle) or were the result of efforts to arrest the applicant using force that was reasonable in the circumstances in view of his vigorous resistance.        On 18 February 1998, Mr Justice Kerr sitting in the High Court found that the applicant had been assaulted in the course of the arrest and that any struggle which had occurred did not warrant or justify the infliction of injury upon him. He was also satisfied that he was assaulted inside Castlereagh Detention Centre as he alleged, that he was subjected to unnecessary verbal abuse and that his transfer to hospital was unnecessarily and unjustifiably delayed. As regarded the amount of damages to be paid, he held:              "In the present case the level of damages must reflect not      only the conduct of those police officers who assaulted the      <applicant> but also the concerted denial of the <applicant's>      claim and the presentation of evidence which I have found to be      untruthful.            To foil a terrorist attack such as was planned by the      <applicant> and his companions and to apprehend heavily armed      terrorists called for great courage and commitment on the part      of the police officers involved. The courage of those police      officers and the callous intent of the terrorists cannot excuse      the assault upon the <applicant>, however, nor can it mitigate      the damages which must be awarded to mark the law's condemnation      of such illegal behaviour."        The judge concluded by awarding £30 000 aggravated and exemplary damages for personal injuries.     COMPLAINTS   Article 3        The applicant complains that while in the custody of the RUC he was subjected to torture, inhuman and degrading treatment contrary to Article 3 of the Convention. He submits that his treatment is part of a systematic practice which permits, condones and encourages brutality towards detainees. He refers to reports by non-governmental organisations such as Amnesty International and the Committee for the Administration of Justice.        The applicant also complains of the effect of section 135 of the Criminal Justice Act 1988 pursuant to which the decision to prosecute public officials responsible for torture can only be made with the consent of the Attorney-General for Northern Ireland who is a member of the Government. The lack of any avenue for independently reviewing a decision not to prosecute fails to protect the applicant's rights under Article 3 of the Convention, as does the inadequacy of the procedure for investigating complaints against the police.        The applicant also invokes Article 3 of the Convention with respect to the admissibility of evidence obtained in contravention of this Article.   Article 5 of the Convention        The applicant complains under this provision of his detention for the purpose of obtaining forensic evidence after a doctor had recommended his immediate transfer to hospital and of the inability of the doctor to insist on the applicant receiving necessary and urgent medical treatment while in police custody.   Article 6 of the Convention        The applicant complains of the admissibility of evidence obtained in contravention of Articles 3 and 5 of the Convention as violating his right to a fair trial.   Article 13 of the Convention        The applicant complains of a violation of this provision in conjunction with a violation of Article 3 of the Convention. He refers to the inadequacy of the procedure for investigating complaints against the police and to the necessity for obtaining the consent of the Attorney-General to any decision to prosecute, combined with the lack of any independent review of any decision by the Attorney-General not to prosecute.   Article 14 of the Convention        The applicant submits that the use of torture, inhuman and degrading treatment by the security forces in Northern Ireland amounts to discrimination on the grounds of national origin or association with a national minority.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 August 1994 and registered on 3 November 1994.        On 27 November 1995, the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 11 April 1996 after an extension of the time-limit fixed for that purpose.   The applicant replied by fax on 20 September 1996, after three extensions of the time-limit.        Following telephone conversations between the Secretariat and the applicant's solicitors on 29 October and 15 November 1996, a letter dated 9 January 1997 was sent by the Secretariat reminding the applicant's solicitors that a hard copy of the observations and copies of the annexes referred to in the observations had not been provided. A further letter dated 10 March 1997 was sent to the applicant's solicitors warning that the case might be struck off. By letter faxed the same date, the applicant's solicitors provided part of the annexes. On 13 May 1997, the applicant's solicitors   submitted the remaining annexes.        On 8 September 1997, the Commission decided to adjourn the application pending the civil proceedings instituted by the applicant and requested that the parties keep it informed of the progress of the proceedings.        By letter dated 24 February 1998, the Government informed the Commission that the High Court had issued its judgment in favour of the applicant and made submissions as to the effect that this had on the applicant's claims before the Commission.        By letter dated 23 March 1998, the Secretariat of the Commission requested the applicant to submit, by 17 April 1998,   his comments on the information and submissions provided by the Government, in particular indicating the grounds on which he claimed still to be a victim of any of the rights invoked by him and whether he intended to continue with his application. No response was received.        By letter dated 27 May 1998, the Secretariat informed the applicant that the Commission would proceed to examine the case shortly and in the absence of further clarifications might proceed to strike it from the list of cases.     REASONS FOR THE DECISION        The Commission observes that, in the applicant's proceedings against the Chief Constable of the RUC, the High Court on 18 February 1998 found that the applicant had been assaulted by police officers during and after his arrest and awarded aggravated and exemplary damages. It notes that the judge made findings upholding the applicant's claims not only in respect of the assaults but also finding that he had been unnecessarily verbally abused and that his transfer to hospital had been unjustifiably delayed. His remarks made clear that the conduct of the officers concerned was illegal and to be condemned. The Commission finds that the judgment addresses, and offers redress in respect of, the substantive allegations of ill-treatment made by the applicant in his application to the Commission.        The Commission further notes that the applicant has failed to make any response to the letter of the Secretariat in which he was requested to comment on the significance of this recent development to the claims made in the present application and has also failed to confirm whether he wishes to maintain his application.        In these circumstances, the Commission considers that it is appropriate to strike the application out of its list of cases on the basis that the matter has been resolved within the meaning of Article 30 para. 1(b) of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.     Secretary to the Commission         President of the Commission          (M. de SALVIA)                       (S. TRECHSEL)