AS TO THE ADMISSIBILITY
Application No. 12279/86
by Richard CARLESS
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, 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 23 October 1985
by Richard CARLESS against the United Kingdom and registered on
17 July 1986 under file No. 12279/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1942 and resident
in Basildon. The facts as submitted by the applicant may be
summarised as follows.
The applicant is a London cab-driver. He is also a registered
asthmatic and bronchitis sufferer.
In or about January 1985, when the applicant was waiting for
fares at Heathrow airport, he was approached by a man smoking a large
pipe who wished to take a taxi. The applicant explained his health
condition and requested the man either to refrain from smoking while
in his cab or otherwise take the cab behind. The man said he would
take the next cab. A traffic warden noticed this incident however and
the applicant was charged with refusing to take a fare under section
9(5) of the Heathrow Airport Byelaws.
The applicant was tried before Uxbridge Magistrates' Court and
fined £20. He was supported in his defence by A.S.H., an anti-smoking
organisation, who were able to fund his appeal and provide him with
representation. He appeared before the Crown Court on 23 November
1985 and on his appeal being dismissed, the fine was increased to £110
plus costs. A.S.H. was unable to help the applicant further. He then
applied unsuccessfully for legal aid to take the case to the High
Court. His application was refused on appeal on 9 April 1986 on the
ground inter alia that he did not have a reasonable chance of success.
The applicant refused to pay the fine and on 15 July 1986 received a
sentence of seven days imprisonment which was confirmed on appeal.
The applicant served three days of his sentence in Pentonville and was
released on 18 July 1986.
While in prison, the applicant wanted to contact both the
European Commission of Human Rights and his elderly mother in order to
let her know where he was. He alleges that he made such a request
twice to the prison governor but was refused. There is however no
record of such request being made.
COMPLAINTS
The applicant complains of being refused legal aid to take his
case to High Court in violation of Article 6 para. 3 (c)and Articles
13 and 14 of the Convention. He considers his punishment was
excessive and totally unjust, in which respect he invokes Articles 3,
5 and 7 of the Convention. He also claims that he has been prevented
from following his convictions contrary to Article 2 of Protocol
No. 1.
The applicant also complains that while in prison the governor
refused to allow him to contact his elderly mother or the European
Commission on Human Rights contrary to Articles 8 and 10 of the
Convention. He also contends that he was prevented from attending
church or speaking to the other prisoners contrary to Articles 9 and
11 of the Convention. He further complains of having to share a cell
with a prisoner who smoked and of being subjected to an excessive
delay in receiving necessary medication.
The applicant also invokes Article 19 of the Convention and
Article 1 of the Fourth Protocol.
THE LAW
1. The applicant complains of being prevented from writing to the
Commission and to his mother when he was detained in Pentonville
Prison contrary to Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides that:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others."
The Commission notes however that the applicant was in fact
detained in prison for only three days and that there is no record
that he made a request to write to the Commission or to his mother.
In these circumstances the Commission finds that the applicant has
failed to establish that there has been any real or effective
interference with his rights under Article 8 (Art. 8) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
The Commission has also given consideration to the applicant's
complaint concerning correspondence to the Commission in the context
of Article 25 para. 1 (Art. 25-1) in fine of the Convention which provides
that those High Contracting Parties who have made a declaration
recognising the Commission's competence to receive individual
petitions undertake not to hinder in any way the effective exercise of
this right. The Commission finds however that, in the circumstances
of the present case, in particular, the shortness of time involved in
the alleged restriction of the applicant's correspondence with the
Commission, there was no real hindrance to the applicant in the
presentation of his complaints before the Commission. The Commission
concludes therefore that it need take no further action in respect of
the alleged interference with the applicant's exercise of the right of
individual petition within the meaning of Article 25 (Art. 25) of the
Convention.
2. The applicant also complains of a breach of Articles 6 para. 3 (c), 13
and 14 (Art. 6-3-c, 13, 14) of the Convention in respect of the refusal of
legal aid to enable him to take his case to the High Court.
The Commission notes however that legal aid was refused on the
grounds inter alia that he had no reasonable prospect of success. The
Commission finds no indication from the application as it has been
submitted, that proper consideration was not given to the question
whether the interests of justice required that he should be granted
legal aid. In these circumstances the Commission finds no appearance of a
violation of Articles 6 para. 3 (c), 13 or 14 (Art. 6-3-c, 13, 14) of the
Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains that his punishment was totally
unjust and excessive and that he has been prevented from following his
convictions. He invokes Articles 3, 5, 7 (Art. 3, 5, 7) of the Convention and
Article 2 of Protocol No. 1 (P1-2).
The applicant also complains of being prevented from attending
church or associating with other prisoners while in prison, of a delay
in receiving medication and of sharing a cell with someone who smoked.
He also invokes Article 19 (Art. 19) of the Convention and Article 1 of the
Fourth Protocol (P1-4).
The Commission notes first of all that the United Kingdom is
not a party to the Fourth Protocol and accordingly finds that the
complaint concerning Article 1 of the Fourth Protocol (P1-4) must be
dismissed as incompatible ratione personae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
The Commission has examined the applicant's remaining
complaints as they have been submitted by him. However, after
considering the case as a whole, the Commission finds that the
applicant's complaints have not been substantiated and that the
petition does not generally disclose any appearance of a violation of
the rights and freedoms set out in the Convention.
It follows that this part of the application is as a whole manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE and
DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE
ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE
RIGHT OF INDIVIDUAL PETITION.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)