AS TO THE ADMISSIBILITY OF
Application No. 21820/93
by K.B.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 27 January 1993
by K.B. against the United Kingdom and registered on 11 May 1993 under
file No. 21820/93;
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 British citizen born in 1957 and resident in
Birmingham. Before the Commission he is represented by Messrs. Maurice
Andrews, solicitors practising in Birmingham.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant was involved in an incident 11 March 1990 in which
two men were injured. He was arrested on 3 July 1990 and, with a co-
accused, charged with inflicting grievous bodily harm and assault. He
was released on bail.
At his trial in February 1991, the applicant pleaded that he had
been going to the defence of his co-accused, who had pleaded self-
defence. He was convicted on 15 February 1991 of grievous bodily harm
and sentenced to 3 years' imprisonment.
The applicant applied for leave to appeal against conviction on
26 February 1991, alleging, inter alia, that the judge had misdirected
the jury as to the questions of self-defence and reasonable defence.
Leave to appeal was granted by a single judge of the Court of
Appeal on 16 June 1991. Bail was refused. On 24 November 1991, the
applicant contacted the Registrar of Criminal Appeals who on 3 December
1991 informed him that due to the limited availability of court time
the appeal was unlikely to be heard before Christmas.
On 18 February 1992, the Court of Appeal heard the appeal. It
found that the judge's direction to the jury as to self-defence had
been fundamentally wrong and that the conviction should therefore be
quashed.
On 13 March 1992, the applicant applied to the Secretary of State
for compensation for his detention. By letter dated 30 March 1992, the
Home Office stated that it would consider the application in the
context of the Criminal Justice Act 1988 and the Home Secretary's
statement to the House of Commons of 29 November 1985 concerning
payment of compensation where a person has spent a period of custody
as a result of serious default on the part of a public authority. The
applicant's application was refused by letter dated 18 August 1992.
The applicant applied for judicial review of the Secretary of
State's refusal.
Leave was refused on 18 January 1993. The High Court judge found
that the Home Secretary had not erred in his application of the
statutory machinery for compensation and rejected the submissions of
the applicant's counsel that the delay in the hearing of the appeal
disclosed serious default on the part of a public authority.
COMPLAINTS
The applicant complains that no compensation was paid to him for
the year which he had spent in prison. He invokes Article 5 of the
Convention, and, without further specification, subsidiarily mentions
Articles 3, 6, and 13 of the Convention, also referring to the length
of proceedings.
THE LAW
1. To the extent that the applicant complains of the length of
proceedings in relation to his appeal against conviction, the
Commission recalls that Article 6 para. 1 (Art. 6-1), so far as
relevant, provides in its first sentence:
"1. In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ...tribunal established by law..."
Since the proceedings concerned the applicant's appeal against
conviction on a criminal charge, the above provision applies.
According to the constant case-law of the Court and the
Commission, the reasonableness of the length of proceedings must be
assessed in the light of the circumstances of each case and having
regard in particular to the following criteria: the complexity of the
the case, the conduct of the applicant and that of the competent
authorities (see, for example, Eur. Court H.R., Kemmache judgment of
27 November 1991, Series A no. 218, p. 27, para. 60). Persons held in
detention are also entitled to special diligence (see, for example,
Eur. Court H.R., Tomasi judgment of 27 August 1992, Series A no. 241-A,
p. 35 para. 84).
In the present case, the period at issue is the time elapsing
between conviction on 15 February 1991 and the determination of the
appeal on 18 February 1992, a period of one year and three days.
The applicant applied for leave to appeal on 26 February 1991.
Leave to appeal was granted on 16 June 1991. The applicant was informed
by the Registrar of Criminal Appeals that due to the limited
availability of court time the appeal was unlikely to be heard before
Christmas. There is therefore a period between 16 June 1991 and 18
February 1992, a period of 8 months during which nothing was apparently
done.
The Commission, having regard to the case as a whole however,
considers that the delay that occurred is not sufficient to justify the
conclusion that the total length of proceedings (i.e. 19 months from
the applicant`s initial arrest until the quashing of his sentence) was
excessive and thereby raises an issue under Article 6 (Art. 6) 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.
2. The applicant also complains, without further specification,
under Article 5 (Art. 5) of the Convention. Article 5 (Art. 5)
provides, insofar as relevant:
"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...
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."
The Commission notes first of all that there is no indication
that the applicant's detention was unlawful within the meaning of
Article 5 para. 1 (Art. 5-1) of the Convention. While the Court of
Appeal quashed his conviction on the basis of a misdirection of the
trial judge, this does not deprive his detention of the character of
"lawful" within the meaning of the Article 5 para. 1 (a) (Art. 5-1-a)
of the Convention.
The Commission also notes that the applicant complains that he
was unsuccessful in obtaining compensation for his period of detention.
The right to compensation under Article 5 para. 5 (Art. 5-5) of the
Convention presupposes that a violation of one of the other paragraphs
of Article 5 (Art. 5) has been established either by a domestic organ
or by the Convention organs (see eg. No. 7950/77, Dec. 4.3.80, D.R. 19,
p. 213). In the present case, however, the Commission has found above
that the applicant's complaints disclose no appearance of a violation
of Article 5 para. 1 (Art. 5-1) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also invokes, again without further specification,
Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
In the present case, the applicant does not even complain in
general terms of the degrading experience of being detained in prison.
He complains of no specific aspect and makes no reference to any
physical or mental ill-effects. In these circumstances, the Commission
finds that the applicant's experience, unpleasant though it may have
been, does not disclose treatment of such a nature or degree as to
render it either inhuman or degrading within the meaning of Article 3
(Art. 3) of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, again without any further specification whatsoever, the
applicant invokes Article 13 (Art. 13) of the Convention.
Article 13 (Art. 13) provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The case-law of the European Court of Human Rights establishes,
however, that Article 13 (Art. 13) does not require a remedy in
domestic law in respect of any supposed grievance under the Convention:
the grievance must be an arguable one in terms of the Convention (Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52). The Commission has considered that the applicant`s
complaints under Articles 3, 5 and 6 (Art. 3, 5, 6) of the Convention
are manifestly ill-founded. It finds that the applicant does not have
an arguable claim of a breach of these provisions for the purposes of
a remedy under Article 13 (Art. 13) of the Convention.
It follows that this complaint must also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy