AS TO THE ADMISSIBILITY OF
Application No. 27286/95
by Melvin John PARKER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 28 June 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
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 17 February 1995
by Melvin John PARKER against the United Kingdom and registered on
10 May 1995 under file No. 27286/95;
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 1956. He lives
in Henlow, in Bedfordshire and has been unemployed and in receipt of
State benefits since about 1990. He is represented before the
Commission by Messrs. Simkins, solicitors, of Baldock. The facts of
the case, as submitted by the applicant's solicitors, may be summarised
as follows.
The applicant was summoned to appear before Ampthill Magistrates'
Court for non-payment of the community charge in October 1992. Legal
aid was not available and the applicant was not represented. The
magistrates were aware that the applicant's only source of income was
the State benefits he received. A warrant was issued committing the
applicant to prison for 30 days. He served the term.
COMPLAINTS
The applicant alleges a violation of Article 5 of the Convention.
He considers that his detention was neither "in accordance with a
procedure prescribed by law" within the first paragraph of Article 5
para. 1 nor "lawful" within the meaning of Article 5 para. 1(a) or (b).
He also alleges a violation of Article 5 para. 5 of the Convention as,
by virtue of Section 108 of the Courts and Legal Services Act 1990, he
was unable to bring an action against the magistrates who imprisoned
him.
The applicant also alleges a violation of Article 6 of the
Convention as legal aid was not available for the hearing in
October 1992.
The applicant refers generally to the case of Stephen Andrew
Benham (No. 19380/92, Comm. Report 29.12.94, pending before the
European Court of Human Rights). It was as a result of that case that
he became aware that the magistrates' court had acted in excess of its
powers.
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 ... and within a period of six months from the date
on which the final decision was taken".
The Commission recalls that in the case of Benham (No. 19380/92,
Comm. Report 29.12.94, 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. It is therefore possible
that the High Court was not an effective remedy within the meaning of
Article 26 (Art. 26) of the Convention.
On the other hand, 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.
However, even if the applicant was not required to pursue an
application to the High Court against the committal order, the
Commission may not deal with the complaint because, where there is no
remedy against the acts of a domestic authority, the six months' time-
limit in Article 26 (Art. 26) runs from the date of the decision
complained of (see, for example, No. 9599/81, Dec. 11.3.85, D.R. 42
p. 33 and the cases referred to at pp. 40, 41). The decision in the
present case was taken in October 1992, and the applicant was detained
for 30 days, that is, until some time in November 1992.
Even if the Commission were to take as the "final decision" not
the decision of the magistrates, but the last day on which the
applicant was detained, he has still not introduced his application
within six months, as he first wrote to the Commission on
17 February 1995. An examination of the case does not disclose any
special circumstances which might have interrupted or suspended the
running of that period. In particular, the fact that the applicant
only became aware of the possible Convention issues when he heard about
the Benham case on the radio cannot affect the running of the six
months' period.
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.
In this connection, and to the extent that the complaint is
severable from the remainder of the application, the Commission notes
that legal aid is not available in community charge committal
proceedings as a matter of law: the magistrates have no discretion
(which could possibly be challenged) to grant legal aid. An
application to the High Court could therefore not have resulted in the
grant of legal aid to the applicant. Further, if proceedings before
the High Court had been successful - as in the case of Benham - the
position as to legal aid would not be affected.
In connection with this complaint, the Commission finds that the
six months' period referred to in Article 26 (Art. 26) of the
Convention began with the magistrates' decision and immediate committal
order in October 1992. Again, the applicant introduced his application
only on 17 February 1995, that is, more that six months after the
expiry of the period.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3 (Art. 27-3)
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) (C.L. ROZAKIS)
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