AS TO THE ADMISSIBILITY OF
Application No. 12301/86
by Graham Gordon GILLARD and Patricia Ann GILLARD
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
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 17 April 1984
by Graham Gordon Gillard and Patricia Ann Gillard against the United
Kingdom and registered on 1 May 1986 under file No. 12301/86;
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 first applicant is of British nationality born in 1943 and
currently serving a prison sentence in H.M. Prison Gartree. The
second applicant, his wife, is of British nationality born in 1947 and
currently serving a prison sentence in H.M. Prison Styal. The facts
as submitted by the applicants may be summarised as follows.
The first applicant was arrested on 24 May 1982 in connection
with the killing of two people. He was subsequently remanded in
custody on two charges of murder and two charges of conspiracy. In
July 1982, the second applicant was also charged with two offences of
conspiracy to murder and two offences of conspiracy to pervert the
course of justice. The applicants allege that the police could find
no evidence against them and accordingly entered into conspiracy with
other local criminals implicated in the incident to secure the applicants'
conviction. They also allege that the police assisted the prosecution
witnesses to re-adjust their evidence to fit the prosecution's case and
that the police searched the first applicant's cell while he was absent.
The applicants were committed for trial on 20 January 1983 and
the trial itself began in June 1983. The first applicant had prepared
questions to put to the prosecution witnesses to expose the conspiracy
but his counsel refused to believe his allegations or to conduct the
defence in the manner he wished. The applicants were found guilty on
28 July 1983, the first applicant being sentenced to life imprisonment
for murder and the second applicant to twelve years' imprisonment for
conspiracy to commit murder and to pervert the course of justice.
The applicants appealed against conviction, on grounds inter
alia that the judge had failed to direct the jury correctly as to the
credibility of the evidence given by the prosecution witnesses and
that he had failed to remind the jury that there was no forensic
evidence to prove the first applicant was at the scene of the murder
or that one of the prosecution witnesses had failed to pick out the
first applicant at an identification parade. The first applicant also
lodged additional grounds of appeal in which he stated that the
evidence had been fabricated by the police and that the trial judge,
who had been involved in the earlier trial of a defendant who had
accused the first applicant of being involved in various crimes, had
been biased against him.
The applicants' applications for leave to appeal were refused
by a single judge of the Court of Appeal and their renewed application
dismissed by the full Court of Appeal on 29 March 1985.
The applicants claimed from the outset that their conviction
and imprisonment were unlawful. The applicants submitted an
application for habeas corpus to the Royal Courts of Justice but were
informed on 12 November 1986 that though the Court had considered
their application, it did not find it necessary to direct that the
applicants should be allowed to present their application in person or
that they should have the assistance of the Official Solicitor in
making a formal application. The applicants were informed that an
application could still be made on their behalf by counsel. However,
their applications for legal aid for this purpose had been refused on
9 October 1986 on the grounds that, inter alia, they had not shown
that they had reasonable grounds for taking these proceedings and that
their application would have no prospect of success. Their appeal
against this decision was refused by letter dated 25 November 1986.
COMPLAINTS
The applicants complain of being subjected to mental torture
contrary to Article 3 of the Convention as a result of their
conviction and imprisonment for offences which they claim they did not
commit.
The applicants further complain that they are being detained
contrary to Article 5 paras. 1 and 4 of the Convention. They also
complain that they have not received a fair trial within the meaning
of Article 6 para. 1 of the Convention and they also invoke Article 6
para. 2 of the Convention in connection with their trial and
conviction.
They complain inter alia in this regard that the police
conspired to adjust the evidence to secure their conviction and that
the judge was biased, having already been involved in the trial of a
defendant who had accused the first applicant of criminal involvement.
The applicants also complain that an article on crime statistics on
the Police Gazette 1982, which was reproduced in a local newspaper,
prejudiced their trial, since it stated inter alia that in 1982 in all
cases of homicide the offender was detected within a few days.
The applicants also complain that their family life has been
destroyed and that the prison authorities have censored their
correspondence to the police, and to the Commission. They complain
that considerable amounts of their mail have gone missing and that
they have received no satisfactory explanation from the Post Office or
Home Office. They invoke Article 8 of the Convention.
The applicants also complain that they have been discriminated
against contrary to Article 14 of the Convention because they have
dared to challenge the abuses of the legal system.
THE LAW
1. The applicants invoke Article 3 (Art. 3) of the Convention in respect
of their conviction and imprisonment for offences which they allege
that they did not commit.
With regard to the judicial decisions of which the applicants
complain the Commission 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 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 constant
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 p. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45) and finds no appearance of a violation
of Article 3 (Art. 3) of the Convention in the decisions complained of.
It is true that the applicants also complain that they have
not received a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention which provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law..."
The question of whether a hearing conforms to the standards
laid down in Article 6 para. 1 (Art. 6-1) of the Convention must be
decided on the basis of an evaluation of the proceedings in their
entirety and not on the basis of an isolated consideration of any one
particular incident or aspect (see e.g. Nielsen v. Denmark,
Application No. 343/57, Dec. 2.9.59, Yearbook 4 p. 548; Application
No. 5574/72, Dec. 21.3.75, D.R. 3 p. 10; Application No. 7306/75, Dec.
6.10.76, D.R. 7 p. 115 and Application No. 8744/79, Dec. 2.3.83, D.R.
32 p. 141).
The Commission has accordingly looked at the proceedings as a
whole on the basis of the applicants' submissions. The Commission
however finds that an examination of the proceedings as a whole fails to
disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention. The Commission recalls in particular that the applicants were able
to submit their complaints, alleging that the judge was biased and misdirected
the jury, to the Court of Appeal, which however found their grounds of appeal
did not justify giving them leave to appeal.
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.
2. The applicants also complain of a violation of Article 6 para. 2
(Art. 6-2) of the Convention, which guarantees that everyone charged
with a criminal offence shall be presumed innocent until proved guilty
according to law.
The Commission has examined the facts as submitted by the
applicants but finds that the applicants have failed to establish that
the principle of the presumption of innocence was not respected in
their case.
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 applicants also complain of a violation of Article 5
paras. 1 (a) and 4 (Art. 5-1-a, 5-4) of the Convention. These provide:
"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 ... ".
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful."
The Commission has examined the facts as submitted by the
applicants but finds that the applicants have failed to establish that
they were not lawfully convicted by a competent court within the
meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
This finding does not however dispense the Commission from
proceeding to examine whether there has been a violation of paragraph
4, which is a separate provision. The Commission recalls first of all
that where a decision depriving a person of liberty is made by a court
at the close of judicial proceedings, the supervision required by Article 5
para. 4 (Art. 5-4) is incorporated in the decision. This is so, as in the
present case, where a sentence of imprisonment is pronounced after "conviction
by a competent court" (see e.g. Eur. Court H.R., De Wilde, Ooms and Versyp
judgment of 18 November 1970, Series A no. 11). The Commission further recalls
that the applicants were also able to challenge the lawfulness of their
detention by submitting an application in writing for habeas corpus to the High
Court, which on a preliminary examination found no grounds to direct that the
applicants be allowed to appear in person to present their application or that
they should be given the assistance of the Official Solicitor. In the light of
these circumstances, the Commission finds no appearance of a violation of
Article 5 para. 4 (Art. 5-4) of the Convention.
The Commission accordingly finds no appearance of a violation
of Article 5 paras. 1 or 4 (Art. 5-1, 5-4) 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.
4. The applicants also complain of a violation of Article 8 (Art. 8) of
the Convention in that their family life has been destroyed by their
imprisonment. They also complain that their mail has been subject to
censorship and that considerable amounts of their mail have gone
missing.
Article 8 para. 1 (Art. 8-1) of the Convention provides that:
"Everyone has the right to respect for his private
and family life, his home and his correspondence."
Insofar as the applicants complain of the disruption of the
family life, the Commission recalls that the separation of detained
persons from their families and the hardship resulting from it are
inevitable consequences of lawful imprisonment. The Commission
accordingly finds no appearance of a violation of Article 8 (Art. 8) of the
Convention in this respect.
Insofar as the applicants complain of censorship of their
mail, the Commission refers to its constant case-law in which it has
held that the opening and reading of letters by the prison is not
contrary to Article 8 (Art. 8) of the Convention (see e.g. Application Nos.
2375, Dec. 7.2.67, Coll. 22 p. 45 and 4351/70, Dec. 5.10.70, Coll. 36
p. 83).
The applicants also complain that considerable amounts of
their mail have gone missing. The Commission recalls however that
Article 8 (Art. 8) of the Commission does not guarantee the perfect
functioning of the postal system and the applicants have failed to
establish that there has been any positive official interference with
the mail in question.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicants also complain of discrimination contrary to
Article 14 (Art. 14) of the Convention.
The Commission has examined the applicants' complaint as
submitted by them but finds that it falls to disclose any appearance
of a violation of Article 14 (Art. 14) of the Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
6. The Commission finally notes the applicants' complaint that
their correspondence to the Commission has been opened by the prison
authorities but does not find on the facts of the present case any
indication that there has been a hindrance in the applicants'
effective exercise of their right to lodge a complaint before the
Commission contrary to the last sentence of Article 25 (Art. 25) of the
Convention.
For these reasons, the Commission
1. DECLARES THE APPLICATION INADMISSIBLE;
2. 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)