CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 février 2007

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   K. Traja ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mr T.L. Early , Section Registrar , Having regard to the above application lodged on 5 August 2005, Having deliberated, decides as follows:                   THE FACTS The following, who are British citizens, are named as applicants: -           Patrick Petrie born in 1968 and resident in London, -           Paul O’Toole born in 1966 and resident in Dudley -           Darren Nash born in 1970 and resident in Herne Bay; -           Robert Kakoo born in 1973 and resident in London.   The application is presented by Ms I Nembhard, a solicitor practising in London. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. In November 1997, the four applicants were serving sentences of imprisonment in HM Prison Parkhurst. On 8 November, an incident occurred in the prison involving three members of staff and a number of prisoners. The first applicant claimed that a prison officer had hit him on the head with a radio causing him to fall to the ground with a bleeding head. An altercation had ensued in which three prison officers received injuries. Six prisoners, including the applicants, were escorted to the segregation unit. At about 8 a.m. on 9 November 1997, officers entered the first applicant’s cell in full riot gear. They punched him, kicked him and swore at him, calling him a “scumbag” and a “black bastard”. He was pinned to the ground and handcuffed. A female officer cut off his clothes with scissors. Once he was naked a pair of boxer shorts was pulled on him and he was removed to the prison yard. The officers continued kicking and beating him and threw him face down on the ground in a puddle. He was placed kneeling in a prison van and taken to HM Prison Albany nearby where the beating continued. He was placed in segregation and the officers threw food and water at him. He was forced to eat off the floor. The other applicants were assaulted in a similar manner. The second applicant, O’Toole, was made to stand facing the wall. When he tried to look round, his head was smashed against the wall. The officers grabbed his hair and genitals. Following allegations by the prison officers concerning the applicants’ conduct, the applicants stood trial, inter alia , for causing grievous bodily harm, violent disorder and affray. In May 1999, the jury acquitted all four applicants. The applicants lodged civil claims, inter alia , for assault and malicious prosecution. Following a hearing before judge and jury in the High Court in June 2003, the first applicant succeeded in his claims of assault and malicious prosecution, and the other applicants succeeded in claims of misfeasance based on incidents of assault. The jury found, inter alia , that the prison officers had wrongly alleged that the first applicant was involved in the assault on the prison officers on 8 November, doing so deliberately without any honest belief in what they alleged and that the prison officers had punched and kicked him on 9 November during his transfer to another prison. The jury awarded GBP 36,000 to the first applicant, and GBP   10,000, 9,000 and 9,000 respectively to the other three applicants. The jury also made an award of GBP 15,000 in exemplary damages to be shared by the applicants. After the conclusion of the civil proceedings, the applicants’ solicitor wrote to the Prison Service requesting a formal investigation into the allegations of abuse by prison officers. On 25 July 2003, the Prison Service indicated that it had commissioned an investigation by a prison governor from outside the area, Governor Robson of HM Prison Standford Hill. Though the applicants’ solicitor contested his independence, the internal investigation proceeded. On 7 October 2003, the Prison Service replied that Governor Robson did not work in the area and was not subject to any line management from that area in respect of his functions as governor or investigator. It was satisfied that the investigation would be carried out fairly and impartially and would be independent without supervision of control from anyone else. It would be decided later how widely the findings of the investigation would be disclosed. On 28 May 2004 the Prison Service informed the applicants’ solicitor that the investigation was completed. It stated that the report would not be disclosed. Following a threat of legal proceedings, the report was provided to the applicants’ solicitor on 29 November 2004. According to the report, prison officers emphatically denied the allegations and new evidence had become available, namely statements by other prison staff and by three prisoners who supported the accounts of staff. It noted that there had been extremely damaging inconsistencies in the account at trial of one officer but that there had also been inconsistencies in the accounts of the complainants which did not appear to have been challenged in the civil trial. It considered that there was little, and thereby insufficient evidence, apart from the minor injuries to the complainants, to substantiate their allegations of assault and fabrication of dishonest allegations. As regarded the first applicant, it concluded that it was unlikely and not independently substantiated that he had been assaulted in an unprovoked attack by a prison officer on 8 November or that he had been assaulted on 9 November when being transferred in full view of the Governor, the Independent Board of Visitors and other senior managers. On 5 January 2005, the applicant’s solicitor wrote to the Prison Service making a formal request for a properly independent investigation into the applicant’s allegations. On 7 February 2005 the Prison Service refused that request. In line with the Robson Report, no criminal or disciplinary sanctions have been commenced against any officer. COMPLAINTS The applicants complained that the assaults by the prison officers and the subsequent fabrications of allegations against them breached Article 3 of the Convention; that the treatment also infringed their right to physical integrity and privacy contrary to Article 8 and that, as shown by the racial abuse suffered by the first applicant, that racism was a motive for these breaches contrary to Article 14 in conjunction with Articles 3 and 8. The applicants also complained of the lack of independence of the internal investigation and the failure otherwise to discharge the State’s investigative obligations under Articles 3, 8, 14 and 13 of the Convention. THE LAW The applicants have complained that they were assaulted by prison officers and subject to fabricated allegations of misconduct, and about the procedure of investigation into the same. They invoke Article 3 (prohibition of ill-treatment), Article 8 (respect for physical and moral integrity), Article 14 (prohibition of discrimination in the enjoyment of other Convention rights) and Article 13 (lack of an effective remedy for an arguable breach of a Convention right). Status of applicants The Court observes that the application in this case was accompanied by only one letter of authority, signed by the first applicant, authorising his solicitor to raise complaints in Strasbourg. Although requested to do so by the Registry, the solicitor has not provided letters of authority signed by the other named individuals to that effect and accordingly it has not been shown that they wish to pursue an application before the Court. In the circumstances, having regard to Article 34 of the Convention, the Court finds that Mr Petrie (hereinafter “the applicant”) is the only individual claiming to be a victim of a violation of his rights and the complaints raised on behalf of the other applicants cannot be entertained.   Concerning the applicant’s substantive complaints   Insofar as the applicant complains that he was assaulted and subject to inhuman and degrading treatment, the Court recalls that he brought successful civil claims before the courts and following various findings of misconduct, the prison officers were found liable and compensation was awarded. The Court is satisfied therefore that the national authorities have acknowledged the breach of the Convention and afforded redress ( Eckle v. Germany , judgment of 15   July   1982, Series A no. 51, § 66; Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238 at § 34 and Schlader v. Austria (dec.), no. 31093/96, 7   March 2000, unreported). The applicant can no longer claim to be a victim in this respect within the meaning of Article 34 of the Convention and this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.   Concerning the applicant’s procedural complaints   Article 35 § 1 of the Convention requires that the Court may only deal with a matter where it has been introduced within six months from the date of the final decision in the process of exhaustion of domestic remedies. The object of the six month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v.   Austria judgment of 29 August 1997, Reports 1997–V, at p. 1547, §§ 32-33). Normally, the six month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect or prejudice on the applicant (see e.g. Hilton v. the United Kingdom , no. 12015/86, Commission decision of 6   July 1988, DR 57, p. 108). Furthermore, Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level (see Paul and Aubrey Edwards v. the United Kingdom (dec), no. 46477/99, 4 June 2001). The Court notes that there were two sets of proceedings in the courts concerning the incidents. The criminal proceedings against the applicant did not directly concern his complaints but those made by the prison officers of the applicant’s alleged misconduct. There were no direct findings concerning the events although the jury’s rejection of the prosecution case cast grave doubts on the credibility of the prison officers. The civil proceedings did result in clear findings of fault on the part of the prison officers. However, the Court’s case-law indicates that the procedural obligation under Article 2, and by extension, Article 3, require the State itself to launch an appropriate and effective investigation into alleged breaches which is capable of leading to the identification and punishment of the perpetrators (see McKerr v. the United Kingdom , no. 28883/95, §   113, ECHR 2001 ‑ III). Civil claims lodged at the initiative of the alleged victim do not generally satisfy this requirement ( McKerr , § 156). The Court recalls that the Prison Service, following the court proceedings, launched its own internal investigation, with a view to determining inter alia the need for disciplinary action against any prison officer. The applicant was informed of this and of the intention to appoint a prison governor from another region to head the investigation. It is this investigation which the applicant complains failed to fulfil the State’s procedural obligation as it was not conducted by an individual independent of the parties involved. The applicant was, however, aware of this defect as early as July 2003 and his objections were rejected in October 2003. He nonetheless waited until after the inquiry report was disclosed in November 2004 and a request for a proper inquiry was rejected on 7 February 2005 before bringing his complaints to Strasbourg. While it cannot be regarded as unreasonable for the applicant to have waited for the inquiry report, despite the alleged lack of independence of its author, before introducing his application to Strasbourg (see, mutatis mutandis , Paul and Audrey Edwards v. the United Kingdom , cited above), the Court notes that the report was disclosed to the applicant’s representatives on 29 November 2004. The applicant did not lodge his application until 5 August 2005, more than six-months after that date. The applicant relies on the fact that on 5 January 2005 he made a “formal request” for a properly independent inquiry to be held, which was refused on 7 February 2005, just six months before he lodged his application with the Court. However, the making of such request cannot be regarded as part of any process of exhaustion of domestic remedies nor can the refusal be seen as a “final decision” for the purposes of Article 35 § 1 of the Convention. Further, the Court finds that the request cannot be regarded as interrupting the running of the six month period, which began at the latest on receipt by the applicant’s representatives of the inquiry report. In these circumstances the applicant’s complaints must be rejected as having been introduced outside the six month time-limit pursuant to Article 35 §§ 1 and 4 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.   T.L. Early   Josep Casadevall   Registrar   President