FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 360/10
by Garry Norman MANN
against Portugual and the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 1 February 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ireneu Cabral Barreto,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 10 December 2009 against Portugal and on 21 January 2010 against the United Kingdom,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Garry Norman Mann, is a British national who was born in 1958 and lives in Kent. He was represented before the Court by Ms K. Todner and Mr Evans, lawyers practising in London with Kaim Todner LLP. They were assisted by Mr E. Fitzgerald Q.C and Mr B. Cooper, counsel.
A. The circumstances of the case
1. Proceedings in Portugal
The applicant is a football supporter who was arrested and charged with participating in a riot during the European Football Championships in Portugal in June 2004. He was tried on 16 June 2004 by the Albufeira Judicial Court, two days after his arrest. The applicant claims that he had just five minutes with his legal representative before the hearing; that he did not understand the nature of the charge against him; that there were just two interpreters for fourteen defendants; and that the case proceeded by way of dock identification by the Portuguese police.
The applicant was convicted and sentenced to two years in prison. However, the sentence was not enforceable for fifteen days or until any appeal was heard. The offence was also one for which bail had to be granted pending appeal. Pursuant to a temporary organic law (no. 2/2004), which had been put in place to deal with trouble during the football championships, the applicant was permitted to leave the country under an order for voluntary departure.
The applicant wished to appeal against his conviction and sentence and he and his lawyer intimated this intention to the Albufeira Judicial Court. The appeal was not admitted due to a failure to submit proper grounds for appeal. In consequence, the applicant’s sentence became final. The applicant maintains, however, that proper grounds were submitted. No immediate action was taken to enforce the custodial sentence.
2. Proceedings in the United Kingdom
In July 2005, the United Kingdom authorities sought to impose football banning orders (civil restraining orders that prevent individuals from attending football matches in the United Kingdom or from travelling abroad to watch international football matches) on those, including the applicant, who had been convicted of involvement in riots at the European Championships in Portugal. However, on 3 August 2005, following a hearing that lasted several days, a district judge refused to grant the banning orders, holding that the convictions were “obtained in circumstances that were so unfair as to be incompatible with the applicants’ right to a fair trial under Article 6 [of the Convention]”. In reaching this finding, the district judge relied heavily on the oral evidence of an English police officer, PC Rutter, who had attended the trial in Portugal as an observer.
In 2007, the Portuguese authorities made a request to the United Kingdom Government that the applicant should serve his outstanding sentence in a United Kingdom prison. This request was refused as the United Kingdom authorities would only consider executing a foreign sentence within the scope of the 1983 Convention on the Transfer of Sentenced Persons, which would have required the applicant to have been serving a sentence in Portugal at the time of the request.
On 6 October 2008, the Portuguese authorities issued a European Arrest Warrant, requesting the applicant’s extradition to Portugal, which was certified by the United Kingdom Serious Organised Crime Agency (“SOCA”) on 18 February 2009. The applicant was arrested on 19 March 2009, brought before City of Westminster Magistrates’ Court and granted conditional bail. An extradition hearing took place in August 2009 before the Senior District Judge. The applicant’s representatives did not call any live witnesses, instead relying on the findings of the judge at the banning order hearing. In his decision, handed down on 18 August 2009, the Senior District Judge granted the extradition order. He held that, although the earlier judge’s findings were persuasive, they were not binding on him. Having examined a written note of the trial, the Senior District Judge concluded that the proceedings in Portugal had not been unfair within the meaning of Article 6. He noted that the applicant had been represented by an experienced lawyer who was representing just one other client and that an interpreter had been present throughout the trial. The applicant’s lawyer was able to cross-examine witnesses and address the court, and the applicant was able to give oral evidence. The Senior District Judge also noted that the applicant could have requested postponement of the trial for up to 30 days, which he had not done.
The applicant sought to appeal the Senior District Judge’s decision to the High Court. However, the applicant’s representatives at the time failed to file and serve notice of appeal to the High Court within the statutory period of seven days and, on 25 August 2009, the High Court held that it had no jurisdiction. Thereafter, the applicant instructed new solicitors who applied for the extradition hearing to be re-opened. On 2 November 2009 the Senior District Judge found that he had no jurisdiction to do so. The applicant sought judicial review of that decision and, at the same time, issued judicial review proceedings against SOCA in respect of its decision to enforce the extradition order.
These judicial review applications were heard together in the High Court on 19 November 2009 and dismissed in a written judgment handed down on 19 January 2010. The High Court held that, although the applicant had suffered an apparent injustice, it had no power to act. The injustice did not stem from the unfairness of the hearing (which was disputed), but from the successive failures of the applicant’s lawyers. Nonetheless, it went on to indicate a hope that this Court would grant an interim measure under Rule 39 of the Rules of Court.
On 10 December 2009 the applicant commenced further judicial review proceedings, alleging that it would be unlawful to extradite him while the present application was pending before this Court against Portugal. On 29 January 2010, the High Court granted an interim injunction against extradition pending the hearing of the judicial review application.
3. The applicant’s first application against Portugal
On 24 April 2009 the applicant’s representatives at the time lodged an application with this Court against Portugal (no. 23555/09). The applicant alleged that the Portuguese trial had been unfair on five grounds: the applicant had had insufficient time adequately to instruct a lawyer and prepare his defence; the trial had taken place so quickly that he had been unable to retrieve CCTV footage, which would have given him an alibi; he had no time to trace witnesses who would have supported that alibi; the quality of the interpretation at the trial was so poor he did not understand the nature of the charge and could not follow the proceedings; and the temporary organic law did not provide adequate protection for the rights of the defence.
On 12 January 2010, a Committee of three Judges declared the application inadmissible. It found that the final domestic decision within the meaning of Article 35 § 1 of the Convention had been given on 16 June 2004, more than six months before the date on which the application had been submitted to the Court.
4. The present applications and the subsequent judicial review proceedings in the United Kingdom
The present application was lodged against Portugal on 10 December 2009. On 21 January 2010 the applicant wrote to the Court, bringing an application against the United Kingdom and requesting an interim measure under Rule 39 of the Rules of Court to prevent his extradition by the United Kingdom authorities to Portugal. He further requested first, that the Court indicate to the Portuguese Government that they should not request his surrender until his substantive application to the Court had been heard and second, that the Court indicate to the Portuguese Government that they should withdraw the European Arrest Warrant or issue a fresh warrant thereby allowing proceedings in the United Kingdom to recommence.
On 2 February 2010, the Fourth Section of the Court (to which the application had been allocated) decided that, in light of the interim injunction given by the High Court on 29 January 2010, there was no current risk that the applicant would be extradited from the United Kingdom and it was inappropriate to determine the Rule 39 requests at that stage.
On 26 March 2010 the High Court gave judgment on the application for judicial review that had been lodged on 19 December 2009. It lifted the injunction which it had given on 29 January 2010. The High Court found that it had no power to prevent an extradition merely because an application had been made to this Court.
On 7 April 2010 the Acting President of the Section decided to apply Rule 39 of the Rules of Court and to indicate to the United Kingdom Government that the applicant should not be extradited to Portugal. That decision was taken to allow the Section to consider the applicant’s Rule 39 requests. On 27 April 2010, the Section decided to lift the interim measure previously indicated to the United Kingdom Government. It also decided to refuse the Rule 39 requests made in respect of the Portuguese Government.
On 28 April 2010 the applicant commenced further judicial review proceedings in the United Kingdom. He argued that his extradition would be incompatible with Articles 5 and 6 of the Convention, relying on email correspondence from British consular staff in June 2004, which recorded their understanding that, because the applicant’s sentence was less than three years, his deportation meant he would not have to serve his sentence in Portugal. The judicial review application was refused on 7 May 2010. The High Court found that there was nothing in the emails which had not been before the Senior District Judge. It also found that it could not intervene to prevent extradition pending the outcome of an application to this Court when the applicant would not suffer irreversible harm as a result of the extradition and when this Court had already refused the applicant’s Rule 39 request.
The applicant was extradited to Portugal on 16 May 2010.
COMPLAINTS
Against Portugal, the applicant complained that the application by the Portuguese judicial authorities to enforce his sentence of imprisonment gave rise to a violation of his rights under Articles 5, 6 and 13 of the Convention. The decision of the Portuguese authorities to deport him to the United Kingdom instead of enforcing the custodial sentence and the subsequent delay in issuing the European Arrest Warrant gave rise to a presumption that the proceedings had concluded. The criminal proceedings in Portugal had violated Article 6 § 3 of the Convention on various grounds. First, the applicant had not been informed of the nature of the charge against him: he had perceived it to be a charge of breach of the peace and had only learned that he had been charged with riot after his conviction. This was compounded by the deficiencies in interpretation at his trial. Second, the applicant had not been provided with a lawyer until the morning of his trial. They had a five-minute conference before the trial but the lawyer spoke only limited English and the interpreter had not been present. Third, the Albufeira Judicial Court had refused to allow the applicant to call alibi witnesses: it was stated that the applicant had had enough witnesses and there was no time to call more witnesses. Fourth, the quality of interpretation had been wholly deficient. The interpreter from the morning session had been replaced and none of the interpreters had been capable of simultaneous interpretation for all twelve defendants. The trial therefore amounted to a flagrant denial of justice. Under Article 13, relying on his submission that the appeal had been properly filed at the Albufeira Judicial Court, he complained that he had been deprived of an effective remedy.
Against the United Kingdom, the applicant complained that, for the above reasons, the United Kingdom violated Articles 5 and 6 of the Convention by extraditing him to Portugal.
THE LAW
Article 5 of the Convention provides, 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...”
Article 6 provides, as relevant, as follows:
“1. In the determination ... 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.
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] 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.”
Article 35 provides, as relevant, as follows:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
2. The Court shall not deal with any application submitted under Article 34 that
...
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application.
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”
A. The applicant’s complaints against Portugal
1. Alleged violation of Article 6 § 1 read in conjunction with Article 6 § 3(d) of the Convention
Since this application is the second which has been lodged against Portugal in respect of the applicant’s trial before the Albufeira Judical Court, the question arises whether the present complaint is inadmissible under Article 35 § 2 (b) and 4 of the Convention. The Court recalls its recent observation in Lowe v. the United Kingdom (dec.), no. 12486/07, 8 September 2009 that:
“[T]he rule in Article 35 § 2 of the Convention that an application must not be substantially the same as a previous one is intended to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal previous judgments or decisions of the Court.
The Court recalls that an application will generally fall foul of this article where it has the same factual basis as a previous application. It is insufficient for an applicant to allege relevant new information where he has merely sought to support his past complaints with new legal argument (I.J.L. v. the United Kingdom (dec.), application no. 39029/97, 6 July 1999). In order for the Court to consider an application which relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information which has not been previously considered by the Court, within the six-month deadline set out in Article 35 § 1 of the Convention.”
In the instant case, the Court considers that the complaints now made in respect of Article 6 are reformulations of those previously advanced in the first application. The applicant has advanced more detailed submissions than those first put before the Court but those submissions have the same factual basis and merely seek to support the previous complaints with new legal argument. No new information has been advanced as to the circumstances of the applicant’s trial and, most significantly, none which would cause the Court to reconsider its ruling that the first application was out of time because the final domestic decision was that of the Albufeira Judicial Court in 2004. In this connection, to the extent that the applicant appears to argue that the violation of his right to a fair trial had only arisen due to the recent decision of the Portuguese authorities to enforce the sentence imposed in 2004, the Court recalls that he was arrested on foot of the European Arrest Warrant on 19 March 2009: he was therefore aware of the decision to enforce the sentence before he lodged his first application. Therefore, he could, if he had wished, have made submissions in that application as to why the appropriate date for calculation of the six months’ time-limit was the decision to request his extradition and not the decision of the Albufeira Judicial Court in 2004.
The Court therefore considers that this complaint is inadmissible within the meaning of Articles 35 § 2 (b) and 4 of the Convention.
2. The complaints made under Articles 5 and 13 of the Convention
In respect of the applicant’s complaint under Article 5 of the Convention, the Court recalls that in Stoichkov v. Bulgaria, no. 9808/02, § 51, 24 March 2005, it affirmed that:
“the requirement of Article 5 § 1 (a) that a person be lawfully detained after ‘conviction by a competent court’ does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of Article 6 of the Convention....However, the Court has also held that if a “conviction” is the result of proceedings which were a ‘flagrant denial of justice’, i.e. were ‘manifestly contrary to the provisions of Article 6 or the principles embodied therein’, the resulting deprivation of liberty would not be justified under Article 5 § 1 (a).”
In Stoichkov, the applicant had been convicted in absentia in criminal proceedings which took place in 1988-89. The Bulgarian authorities refused to reopen those proceedings in 2001 and the applicant was made to serve the sentence of ten years’ imprisonment, which had been imposed in 1989. The Court found that there had been a violation of Article 5 § 1. It found, at paragraph 56 of its judgment, that criminal proceedings which had been held in absentia and whose reopening had been subsequently refused, without any indication that the accused had waived his or her right to be present during the trial, might fairly be described as manifestly contrary to the provisions of Article 6 or the principles embodied therein.
The Court is unable to conclude that a similarly flagrant denial of justice has taken place in the present case. The Court considers that its foregoing conclusions in respect of the Article 6 complaint mean that it would be inappropriate to make any factual findings in respect of the applicant’s allegations under that Article. However, it is bound to observe that it is a matter of dispute as to how the trial was conducted before the Albufeira Judicial Court. In particular, the Court notes that two different judges who have examined the case file, albeit in the context of proceedings in the United Kingdom, have reached different conclusions as to the extent to which the trial was fair. Given that factual dispute, and the fact that, by the apparent failure properly to lodge an appeal, the Portuguese appeal courts have been unable to review the fairness of the trial, it cannot be said that the trial may be fairly described as “manifestly contrary to the provision of Article 6 or the principles therein” such as to allow the Court to conclude that the sentence imposed on the applicant would automatically breach Article 5 of the Convention. It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For the Article 13 complaint, to the extent that the applicant relies on that Article taken in conjunction with Article 6 of the Convention, the Court notes that the applicant alleges he had been deprived of an effective remedy by virtue of the Albufeira Judicial Court’s decision in 2004 not to admit his appeal. As the Article 6 complaint was found to be out of time in the first application against Portugal, the Court finds that the Article 13 complaint must also be rejected as out of time.
To the extent that the applicant relies on Article 13 taken in conjunction with Article 5, the Court observes that for Article 13 to be applicable, the complaint to which it relates must also be arguable (see, mutatis mutandis, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, §§ 146 -147). In the present case, the complaint of a violation of Article 5 due to the allegedly flagrant denial of justice by the Albufeira Judicial Court, which the Court has already found to be manifestly ill-founded, was not arguable. Accordingly, the complaint under Article 13 of the Convention taken in conjunction with Article 5 is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. The applicant’s complaints against the United Kingdom
The applicant complains that his extradition by the United Kingdom Government was in violation of Articles 5 and 6 of the Convention. The Court considers that the merits of these complaints are inextricably linked to those he has made against Portugal. Since the Article 5 complaint which he has made against Portugal is manifestly ill-founded for the reasons set out above, no issue can arise in respect of the United Kingdom under the same Article. For Article 6, it is well-established that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country (see King v. the United Kingdom (dec.), no. 9742/07, § 22, 26 January 2010 and further references therein). However, as the Court has stated, it is unable to conclude that a flagrant denial of justice has taken place in the present case, particularly when the manner in which the trial was conducted before the Albufeira Judicial Court is a matter of dispute.
Consequently, and for substantially the same reasons as his complaints against Portugal, the applicant’s complaints against the United Kingdom are manifestly ill-founded and must also be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy