AS TO THE ADMISSIBILITY OF
Application No. 27771/95
by Peter DAVY
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the 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 6 April 1995 by
Peter DAVY against the United Kingdom and registered on 30 June 1995
under file No. 27771/95;
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 applicant is a United Kingdom citizen born in 1969. He lives
in Harlington and is currently unemployed. He is represented before
the Commission by Messrs. Turberville Woodbridge, solicitors, of
Uxbridge. The facts of the case, as submitted by the applicant's
solicitors, may be summarised as follows.
The applicant was summoned to appear before Uxbridge Magistrates'
Court for non-payment of the community charge in December 1993. He was
committed to prison for 42 days on 25 February 1994, when the committal
order was suspended. The applicant was again summoned to the Court on
29 July 1994: he paid arrears which had accrued, and the Court re-
suspended the committal warrant. On 28 October 1994 the Court ordered
that the matter be adjourned for two weeks until 11 November 1994 in
order for the applicant to produce evidence of his financial situation.
On 11 November 1994, even though the applicant was in a position
to pay the arrears, the Court made a committal order against him and
he served the term of imprisonment. Legal aid was not available for
the proceedings and the applicant was not represented.
COMPLAINTS
The applicant alleges a violation of Articles 5 and 6 of the
Convention, referring generally to the case of Benham v. the United
Kingdom (No. 19380/92, Comm. Rep. 29.12.94, pending before the European
Court of Human Rights). It was only following his release and the
publicity given to the case of Benham that the applicant became aware
of his potential remedy before the Commission.
THE LAW
1. The applicant alleges a violation of Article 5 (Art. 5) of the
Convention. He considers that his detention did not comply with
Article 5 para. 1 (Art. 5-1), and that the effect of Section 108 of the
Courts and Legal Services Act 1990 was to deprive him of the right to
seek compensation in respect of that unlawful detention.
Article 5 (Art. 5) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court;
b. the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;
...
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter "after all domestic remedies
have been exhausted ... ".
The Commission recalls that in the case of Benham (No. 19380/92,
Comm. Report 29.11.94, pending before the European Court of Human
Rights), it expressed its opinion that there had been a violation of
Article 5 (Art. 5) of the Convention in that the applicant's detention
had been unlawful, and that he was unable to sue for unlawful
imprisonment in respect thereof. In that case, the Commission had
recourse to the decision of the Divisional Court in concluding that the
applicant's detention had been unlawful within the meaning of the
Convention.
In the present case, the applicant did not challenge the decision
of the magistrates, either by way of judicial review or by way of case
stated. The Commission does not, therefore, have the benefit of the
views of the superior courts in the matter. The question arises
whether the rule on exhaustion of domestic remedies required the
applicant to put his case to the High Court. The Commission notes in
this connection that although it had recourse to the High Court's
reasoning in concluding that there had been a violation of Article 5
(Art. 5) in the case of Benham, the High Court's findings did not
satisfy the requirements of that provision.
Moreover, without the benefit of the High Court's analysis of the
requirements of the domestic law in the case, it is difficult for the
applicant to satisfy the requirements of the Convention in establishing
that his detention was, or may have been, unlawful in domestic law.
It follows that the applicant has not complied with the
requirements of Article 26 (Art. 26) of the Convention, and this
complaint must therefore be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant also alleges a violation of Article 6 (Art. 6) of
the Convention because of the absence of legal aid before the
magistrates.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint and it is therefore
necessary, in accordance with Rule 48 para. 2 (b) of the Rules of
Procedure, to give notice of this part of the application to the
respondent Government.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN its examination of the complaints under
Article 6 (Art. 6) of the Convention concerning the proceedings
in the present case,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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