AS TO THE ADMISSIBILITY OF
Application No. 18120/91
by Paul BURNS and Eleanor TUMILSON
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second 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 8 November 1990
by Paul BURNS and Eleanor TUMILSON against the United Kingdom and
registered on 24 April 1991 under file No. 18120/91;
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 first applicant is a citizen of the United Kingdom, born in
1964 and resident in Belfast. The second applicant is his fiancée.
She was born in 1967 and also resides in Belfast. They are represented
before the Commission by Messrs. Flynn and McGettrick, Solicitors,
Belfast.
The facts of the present case, as submitted by parties, may be
summarised as follows:
At approximately 19.45 hours on 30 September 1990 the first
applicant was driving his car, accompanied by the second applicant,
when they were stopped by soldiers of the Ulster Defence Regiment at
Hope Street, Belfast. The soldiers required the applicants to give
their names, addresses and details of where they were coming from and
going to, which they did. The soldiers appeared to check these details
and then, at approximately 20.30 hours they required the applicants to
get out of the car which was then searched inside. The applicants were
required to wait at the roadside for 20 minutes while this was going
on and they were then asked questions about a street map which was in
the car. 10 minutes later the soldiers asked the applicants if they
would submit to a personal search, which they refused. The police were
called.
When the police arrived the applicants were told that they had
to accompany the soldiers to the Maze Prison to be searched, together
with the car. Section 21 of the Prevention of Terrorism (Temporary
Provisions) Act 1989 authorises the police to require the occupants of
a suspected car to accompany it to a designated place and wait while
the vehicle undergoes a thorough search. The applicants were not
allowed to travel together in the car. The first applicant was taken
to the Maze in a Landrover and the second applicant was taken as a
passenger in the suspected vehicle driven by a policeman, with two
soldiers in the back. They arrived at the Maze around 21.30 hours and
were taken to a custom-built search area. The search of the car was
apparently made by the army.
The first applicant was taken to a hangar and further questioned
by soldiers. He was subjected to a body search and required to remove
his jacket and empty his pockets. He was then required to wait in a
portakabin before being released at approximately 23.25 hours.
No details were given about what happened to the second
applicant.
On 26 February 1992 the applicants issued separate writs against
the police and the Ministry of Defence, claiming damages for "personal
injuries, injury to reputation, loss of liberty, mental anxiety and
distress, physical discomfort and inconvenience, loss and damage
sustained by reason of the negligence, assault, battery, false
imprisonment, breach of duty, trespass to the person and trespass to
goods". These proceedings are still pending.
COMPLAINTS
The first applicant complained of a violation of his rights under
Article 5 paras. 1, 2 and 3 of the Convention, as well as a violation
of Article 13 of the Convention.
Apparently the second applicant associated herself with these
complaints.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 November 1990 and registered
on 24 April 1991.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
13 May 1992. It decided, pursuant to Rule 48 para. 2 (b) of the Rules
of Procedure, to give notice of the application to the respondent
Government, without requesting the parties' observations at that stage
pending the outcome of Application No. 17711/91, Kelly v. the United
Kingdom.
On 4 September 1992 the Commission declared the Kelly case
inadmissible for non-exhaustion of domestic remedies, in accordance
with Articles 26 and 27 para. 3 of the Convention. This decision was
transmitted to the parties in the present case on 8 December 1992 and
the applicants were requested to submit their comments on their case
in the light of the decision and to state whether they wished to
maintain their application. The applicants did not reply to the
invitation.
By letter of 15 December 1992 the Government informed the
Commission that the applicants were in the process of suing the police
and the Ministry of Defence in relation to the facts of their case,
which gave rise to their complaints before the Commission. The
Government also made certain observations as to the admissibility of
the application. The applicants submitted no response to the
Government's letter.
THE LAW
The applicants complained that various aspects of their right to
liberty and security of person, ensured by Article 5 (Art. (art. 5) of
the Convention, were violated when the army and police detained them
for a few hours on 30 September 1990 while searching the car in which
they had been travelling.
The Government submitted that the applicants have not exhausted
domestic remedies before the domestic courts as is required by Article
26 (Art. 26) of the Convention. They contended that the treatment of
which the applicants complain before the Commission is the same as that
complained of before the domestic courts, where proceedings are still
pending.
The Commission refers to its decision in the case of Kelly v. the
United Kingdom, which presented similar facts and allegations to the
present application (No. 17711/91, Dec. 4.9.92, unpublished). In that
case the Commission held as follows:
"Article 26 (Art. 26) of the Convention precludes the Commission
from dealing with any case where domestic remedies have not been
exhausted ...
Part of the task of the Convention organs in an examination of
complaints under Article 5 (Art. 5) of the Convention is to
determine whether the measures complained of by the applicant
were lawful. This is a reference principally to the domestic
law. The Commission notes that in his claim before the domestic
courts the applicant is alleging that the restrictions on his
movements during the search of his brother's car were unlawful
under domestic law... The Commission cannot find it established
that the claim is devoid of any prospects of success. If the
applicant's claim were to succeed before the domestic courts, his
Convention complaints would be wholly or partly vindicated, which
would affect his status as a victim under Article 25 (Art. 25)
of the Convention.
The Commission cannot examine the present case as if section 21
of the Prevention of Terrorism (Temporary Provisions) Act 1989
authorised the treatment while the applicant is complaining about
the same treatment before the domestic courts. The very purpose
of Article 26 (Art. 26) of the Convention is to provide the High
Contracting Party with an opportunity to remedy complaints of a
breach of the Convention in form or in substance, if well-
founded. Accordingly it would be premature for the Commission
to deal with the applicant's case before the domestic courts have
determined his civil claims.
In the circumstances of the present case the Commission concludes
that the applicant has not yet exhausted the remedies available
to him under the law of Northern Ireland, in accordance with
Article 26 (Art. 26) of the Convention. It follows that the
application must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention."
The Commission finds, in the absence of any submissions from the
applicants on this point, that the present application cannot be
distinguished from the Kelly case. The Commission concludes,
therefore, that the applicants have not yet exhausted domestic
remedies, as is required by Article 26 (Art. 26) of the Convention, and
that their application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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