AS TO THE ADMISSIBILITY OF
Application No. 18077/91
by German BUITRAGO MONTES
and Jorge PEREZ LOPEZ
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary a.i. to the First 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 3 May 1990 by
German BUITRAGO MONTES and Jorge PEREZ LOPEZ against the United Kingdom
and registered on 12 April 1991 under file No. 18077/91;
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
Both applicants are Colombian nationals, born in 1935 and 1948
respectively. The first applicant is a real estate agent and the second
applicant is a fishing engineer. At the time of introducing their
application, they were serving prison sentences in Perth Prison,
Scotland.
The facts, as submitted by the applicants, may be summarised as
follows.
On 18 April 1988, the applicants arrived at Glasgow Airport,
where they were subjected to a strip-search by customs officers, who
photocopied their identity papers, flight tickets and an address book.
Although their papers were in order and no dutiable goods were found
in their possession, the applicants were subjected to a surveillance
operation ("Operation Clyde") on suspicion of drug trafficking. They
state that during their stay in a hotel in Greenock customs officers
consequently listened to their private conversations, intercepted their
telephone calls and secretly searched their hotel room.
On 22 April 1988, at 7.38 am, the applicants were arrested in a
hotel in Tynemouth (England) by a number of customs officers, who
searched the room, including the applicants' luggage, and confiscated
their personal documents and money. At 9.55 am, the applicants were
handed over to the English police at a police station, where they were
detained and questioned through interpreters. At 9.30 am the following
day, the applicants were handed back to customs officers, who took them
to Greenock and handed them over to the Scottish police at 12.45 pm.
The applicants were charged at 1.54 pm and 2.06 pm respectively with
various drugs offences, and at 10.15 am on 25 April they appeared
before the Sheriff, who remanded them in custody. While awaiting trial,
the applicants were detained in Barlinnie Prison, Glasgow.
The trial of the applicants and four co-accused took place before
the High Court of Justiciary, sitting in Greenock, between 1 August and
2 September 1988. The applicants were legally aided, and there was
interpretation. The defence objected to certain evidence obtained at
the time of the first search but the objection was dismissed, the court
finding that the customs officers were clearly entitled to make the
search. In his charge to the jury the trial judge required the jury
inter alia to address the question of whether the Crown had established
that the applicants were connected with the importation of illegal
drugs from a vessel - the "San Vicente" - which had berthed in the Port
of Strathclyde in Greenock on 10 April 1988 and where such drugs
(cocaine) had been found. The applicants were convicted by majority
verdicts on two of the four charges against them, namely being
knowingly involved in the evasion of a prohibition on importation of
cocaine and being concerned in the supplying of cocaine. Each of the
applicants was sentenced to 12 years' and 8 years' imprisonment, to run
consecutively.
The applicants complained to the procurator fiscal about the
alleged perjury of certain witnesses, but no action was taken in this
respect.
The applicants also lodged appeals against both conviction and
sentence on 30 September 1988. A note of grounds of appeal drafted by
their solicitors was attached. Further notes of appeal were submitted
by counsel in March and April 1989. The applicants contended that there
was insufficient evidence to uphold their convictions, that the trial
judge had misdirected the jury and that the sentences imposed on them
were excessive, given various their previous good character, their
family circumstances, the first accused's state of health and the
favourable terms of social inquiry reports. The applicants obtained
legal aid for their appeals, although the Scottish Legal Aid Board
refused to cover the costs of obtaining a Spanish translation of the
trial judge's charge to the jury and a transcript of the trial,
considering the expense involved to be unacceptable. No transcript of
the trial is in fact made unless ordered by the appeal court.
At a hearing on 4 May 1989, the High Court of Justiciary, sitting
as a Court of Criminal Appeal and composed of three judges, remitted
the appeal to the trial judge for a supplementary report, which was
submitted in August 1989. The applicants state that they were unable
to obtain a translation of this report. At the final appeal hearing,
on 5 April 1990, the Court of Criminal Appeal accepted that the trial
judge had misdirected the jury in directing that the confession of one
of the co-accused and the personal opinion of a police officer as to
where cocaine originated from were evidence which the jury could take
into account. However, the Court found that there was ample other
evidence to uphold the applicants' conviction, namely that they had
been in contact with other co-accused who were later caught in
possession of cocaine, and with crew members of the vessel where
cocaine was also found. Both applicants had also been seen at the docks
near the said vessel and the second applicant on board. Consequently,
the Court of Criminal Appeal dismissed the applicants' appeals against
conviction, considering that there had been no miscarriage of justice.
On 13 July 1990, the Court also dismissed the appeals against sentence.
The applicants have since 30 August 1990 been classified as
"strict escape A" category and are consequently denied access to a
telephone.
On 5 May 1991, the applicants petitioned the Secretary of State
for Scotland with a request to recommend exercise of the Royal
Prerogative of Mercy, basing their request both on a miscarriage of
justice and on humanitarian grounds. The petition was rejected on
12 July 1991.
COMPLAINTS
The applicants complain that they were subjected to degrading
intimate searches without any medical supervision, first at Glasgow
Airport and later in their hotel in Tynemouth, for no reason other than
their nationality. The applicants further complain that their personal
papers, including letters and address books, were secretly photocopied,
that their private conversations were listened to and their telephone
calls monitored, that their hotel rooms and luggage were searched
without a warrant and that their personal papers and money were taken.
They invoke Articles 3, 8 and 14 of the Convention and Article 1 of
Protocol No. 1.
The applicants also allege that they were arrested without a
warrant and without an interpreter to inform them of their rights or
tell them the reasons for the arrest. During their detention they were
not permitted to inform anyone of their arrest, they were not charged
until the day after their arrest and they were not brought before a
judge until 72 hours after their arrest. They add that the judge
prolonged their detention without hearing them. In this respect they
invoke Article 5 paras. 1, 2 and 3 and Article 6 para. 3 (a) of the
Convention.
The applicants complain that they were not given the
precognitions of the witnesses or allowed to cross-examine them, that
they received all formal documents in English, and that the facilities
in prison were insufficient for them to prepare properly for the trial.
They allege that at the trial the judge instructed the jury to resolve
any doubts in favour of the Crown and to interpret the evidence in the
widest possible sense. They complain that the media stirred up anti-
Colombian feeling and denied them a fair trial. They add that their
nationality was taken into account as "circumstantial evidence" against
them.
Moreover, the applicants complain that the granting of legal aid
for their appeals was delayed, giving them insufficient time to prepare
them properly, and that the Scottish Legal Aid Board refused to
sanction translations of essential documents, namely the trial judge's
charge to the jury and his supplementary report, or to cover the cost
of preparing a transcript of the trial. They also complain that their
convictions were confirmed in spite of the finding that the trial judge
had misdirected the jury and in spite of evidence suggesting that there
were certain inaccuracies in their indictment, and that their appeals
against sentence were rejected in spite of reports confirming their
previous good character, their family circumstances and the first
applicant's state of health. They allege that the sentences were
politically motivated. They refer to Articles 6 paras. 1, 2, 3 (a),
(b), (c), (d) and (e), 7 para. 1, 13 and 14 of the Convention.
The applicants also complain that the refusal of access to a
telephone, which is their only direct means of communication with their
families in Colombia, is contrary to Articles 3 and 8 of the Convention
and that they were exposed to degrading treatment, contrary to the
former provision, as a result of erratic driving during the journey to
Edinburgh for the appeal hearing.
Finally, the applicants complain that no action was taken by the
prosecuting authorities on their complaints about perjury at the trial,
and they invoke Article 13 in this respect.
THE LAW
1. The applicants complain that they were subject to degrading
searches and to an unjustified surveillance operation, that their
personal documents were photocopied and taken away, their personal
belongings looked into and their telephone conversations listened to.
They invoke in this respect Articles 3, 8 and 14 (Art. 3, 8, 14) of the
Convention and Article 1 of Protocol No. 1 (P1-1).
The applicants raise several other complaints in respect of their
arrest. They contend that it was unlawful, based on no grounds, and
carried out without an interpreter to inform them of their rights and
the reasons for the arrest. They further allege that they were not
permitted to inform anyone, that they were not charged until the
following day and that they were not brought before a judge until 72
hours later. They invoke in this connection Article 5 paras. 1, 2 and
3 and 6 para. 3 (a) (Art. 5-1, 5-2, 5-3, 6-3-a) of the Convention.
However, the Commission finds that it is not required to decide
whether or not the facts alleged by the applicants disclose any
appearance of a violation of these provisions of the Convention, as
Article 26 (Art. 26) of the Convention provides that the Commission
"may only deal with the matter ... within a period of six months from
the date on which the final decision was taken". Where there is no
relevant "final decision", the six month period runs from the date of
the act complained of. In the present case the said acts took place
between 18 April 1988 - date of the applicant's arrival in Scotland -
and 25 April 1988 - date of their first appearance before a judge -
whereas the application was submitted to the Commission on 3 May 1990,
that is, more than six months later. Furthermore, an examination of the
case does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of that period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The applicants consider that the criminal charges against them
were not determined in accordance with the requirements of Article 6
paras. 1, 2, 3 and of Articles 7 and 14 (Art. 6-1, 6-2, 6-3, 7, 14) of
the Convention. They submit that they were not given the precognitions
of the witnesses, that all documents were in English and that
insufficient facilities were granted to them in prison to prepare their
defence. The applicants further contend that the media stirred up anti-
Colombian feelings, and that the trial judge instructed the jury to
resolve doubts in favour of the Crown.
However, the Commission finds that it is not required to decide
whether or not the present application discloses any appearance of the
alleged violations of Article 6 (Art. 6) of the Convention during or
in connection with the trial which took place between 1 August and 2
September 1988 before the High Court of Judiciary sitting in Greenock,
as Article 26 (Art. 26) of the Convention provides that "the Commission
may only deal with the matter after all domestic remedies have been
exhausted."
In the present case the complaints raised by the applicants
before the Commission were not raised in their appeals, which concerned
exclusively questions of evidence and the question of the alleged
misdirection to the jury and the allegedly excessive length of the
sentences, given the mitigating factors put forward. Since the
condition as to the exhaustion of domestic remedies has not been
complied, with it follows that this part of the application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicants also consider that the appeal proceedings did not
meet the requirements of Article 6 (Art. 6) of the Convention since
legal aid was delayed, leaving them with insufficient time to prepare
their defence. They further contend that they were denied a transcript
of the trial and translations of certain documents into Spanish. They
also complain that the Court of Criminal Appeal upheld their
convictions in spite of finding that the trial judge had misdirected
the jury, and that it rejected their appeals against sentence in spite
of reports confirming their previous good character, their family
circumstances and the first applicant's state of health. They allege
that the sentences were politically motivated. In this respect, the
applicants invoke Articles 13 and 14 (Art. 13, 14) of the Convention.
The Commission observes firstly that the applicants have not
indicated the date on which the Scottish Legal Aid Board finally
granted them legal aid for the appeal proceedings. It further notes
that their solicitors filed their appeals with notes of grounds of
appeal attached to them on 30 September 1988. According to documents
submitted by the applicants themselves, they were subsequently able to
consult on several occasions with their lawyers, who submitted further
notes of appeal in March and April 1989. The Court of Criminal Appeal
did not deliver its decisions on the applicants' appeals until a year
later. Moreover, with regard to a transcript of the trial, the
Commission notes that no transcript is prepared unless ordered by the
appeal court.
It is true that translations required by the applicants were
refused on the ground that they amounted to excessive and unreasonable
expense. However, the Commission recalls in this connection that the
absence of a written translation of a judgment does not in itself
entail a violation of Article 6 para. 3 (e) (Art. 6-3-e) (see Eur.
Court H.R., Kamasinski Case, judgment of 19 December 1989, Series A no.
168, p. 38, para. 85). Having regard to the fact that in jury trials
in Scotland a transcript of the charge to the jury is made available
to the defence for the purposes of preparing an appeal, the Commission
considers that the absence of a written translation thereof does not
in itself entail a violation of Article 6 para. 3 (e) (Art. 6-3-e).
It recalls that there was interpretation throughout the trial,
including the charge to the jury, and that the applicants make no
complaint about the adequacy of that interpretation, nor do they
suggest that they were unable to communicate effectively with the
lawyers who represented them at the trial, either at that time or while
the appeals were pending. The Commission further recalls that the
applicants obtained legal aid for their appeals and that, with regard
to the charge to the jury, the appeals were based on alleged
misdirections contained therein. Bearing in mind that additional notes
of appeal by counsel were lodged on behalf of the applicants prior to
the first appeal hearing, the Commission finds that the lack of a
translation of the charge to the jury did not prevent them from
effectively making an appeal with the assistance of their legal
advisers, and that they had sufficient time and facilities to prepare
the appeals.
With regard to the trial judge's supplementary report, it follows
from the judgment of the Court of Criminal Appeal of 5 April 1990
rejecting the applicants' appeals against conviction that the
applicants' counsel had had every opportunity to familiarise themselves
with the report prior to the hearing, and there is no indication that
the applicants were unable to communicate freely with their lawyers in
order to discuss the content of the report (cf. No. 14170/88, Dec.
12.3.90, unpublished). In these circumstances, the Commission does not
find that Article 6 para. 3 (e) (Art. 6-3-e) of the Convention required
the provision of legal aid for a translation of the judge's report.
Taking into consideration the situation as a whole in which the
defence was placed in preparing the appeals, the Commission does not
find any appearance of a violation of Article 6 para. 3 (b) and (e)
(Art. 6-3-b, 6-3-e) of the Convention.
The applicants also submit that they were not given a fair
hearing, due to the misdirection by the trial judge, and that the
appeal court ought to have ordered a re-trial. In addition, they
complain that their sentences were confirmed in spite of mitigating
circumstances.
The Commission nevertheless recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
the domestic courts, except where it considers that such errors might
have involved a possible violation of any of the rights and freedoms
set out in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp.
222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.
7987/77, Dec. 13.12.79, D.R. 18 p. 31 at p. 45). The Commission notes
in this respect that the High Court of Justiciary, sitting as a Court
of Criminal Appeal, upheld the applicants' claim that the trial judge
had misdirected the jury but found that in the circumstances of the
case this could not have made any difference to the outcome since the
applicants' conviction relied on ample other evidence showing that both
applicants had been in contact with other co-accused who were later
caught in possession of drugs as well as with crew members from the
vessel on which cocaine was also found. After both applicants were seen
at the docks near to it, the second applicant was also seen on board
the said vessel. In these circumstances, the Commission does not
consider that the rights of the defence were prejudiced by the
misdirection of the trial judge (cf., mutatis mutandis, N° 14067/88,
Dec. 6.7.89, unpublished).
As to the applicants' complaint that their appeals against
sentence were unjustifiably rejected, the Commission does not find,
having regard to the seriousness of the offences in respect of which
the applicants were convicted, that the sentences imposed could be
regarded as arbitrary or unreasonable. It follows that this part of the
application must be rejected as being manifestly ill-founded.
4. The applicants further complain that the denial of access to a
telephone, which is their only direct means of communication with their
families in Colombia, constitutes an unjustified interference with
their family life protected by Article 8 (Art. 8) and inhuman treatment
contrary to Article 3 of the Convention. The latter provision is also
said to have been violated by reason of erratic driving during a
journey to Edinburgh.
The applicants finally allege that there has been a violation of
Article 13 (Art. 13) of the Convention because no action was taken in
respect of their complaints as to the perjury of certain witnesses
during the trial.
The Commission recalls that the possibility of remaining in
contact with one's family constitutes one of the elements of the right
to respect for family life as protected by Article 8 (Art. 8) of the
Convention. It notes, however, that denial of access to the telephone
is a consequence of the applicants' classification as category A
prisoners, a classification which implies stricter safety requirements
in their respect so as to avoid the risk of their escape from prison.
Furthermore, it observes that the applicants' separation from their
families is the direct and inevitable result of their conviction of
serious crimes in the United Kingdom (cf. Nos. 8022/77, 8025/77 and
8027/77, Comm. Report 18.3.81, D.R. 25 p. 15).
The Commission further observes that the applicants have not been
prevented from using other means of communicating with their families.
There is in particular no indication that they have been restricted in
writing or in receiving visits from them. Therefore, refusal of access
to the telephone in prison does not in itself amount to an interference
with the applicants' right to respect for their family life as
protected by Article 8 (Art. 8) of the Convention, since in the present
case the applicants' classification as category A prisoners is not
shown to have impeded unreasonably and arbitrarily their ability to
remain in contact with their families (cf., mutatis mutandis,
N° 6870/75, Dec. 14.5.77, D.R. 10 p. 37). The Commission accordingly
considers that the United Kingdom authorities have not shown lack of
respect for the applicants' family life.
With regard to the applicants' allegations under Article 3
(Art. 3) of the Convention concerning their journey to Edinburgh, the
Commission finds these to be wholly unsubstantiated.
Finally, with regard to the applicants' complaint under
Article 13 (Art. 13) of the Convention that no action was taken in
respect of their allegations of perjury, the Commission recalls that
the Convention does not guarantee a right to have criminal proceedings
instituted against a third person (cf. N° 1488/62, Collection 13
p. 93).
This part of the application must therefore also be rejected as
being manifestly ill-founded within the meaning of Article 27 par. 2
(Art. 27-2) of the Convention.
For these reasons the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary a.i. to the President of the
First Chamber First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy