AS TO THE ADMISSIBILITY OF
Application No. 28188/95
by Ken TYRRELL
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Ms. M.-T. SCHOEPFER, 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 29 May 1995 by
Ken TYRRELL against the United Kingdom and registered on 9 August 1995
under file No. 28188/95;
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 British citizen , born in 1949 and presently
resident in South Glamorgan, Wales. The facts as submitted by the
applicant can be summarised as follows.
On 27 February 1990, the Vale of Glamorgan Borough Council ("the
Council") refused to renew the applicant's hackney carriage vehicle
licence ("taxi licence") on the basis that his vehicle did not comply
with certain technical requirements and, the applicant alleges, because
it did not have a black bonnet. The applicant lodged a statutory
appeal in respect of that decision. On 20 July 1990 the Magistrates'
Court upheld the decision of the Council. On 22 September 1990 the
Crown Court dismissed the applicant's appeal on the basis that the
Council had adduced evidence of numerous faults on the relevant vehicle
and the applicant had not called any evidence. Further, the Crown
Court refused to state a case for the opinion of the High Court and
made a costs order of £100.00 ("fine A") against the applicant and in
favour of the Council.
Pending the determination of the applicant's appeal to the Crown
Court referred to above, the applicant continued to operate his taxi
despite the Council's refusal to renew his licence and further refused
to return his licence plate to the Council. Consequently, the Council
served him with several summonses. On 5 September 1990, he was served
with a summons in respect of his refusal to return his taxi licence
plate to the Council, of which he was found guilty on 10 October 1990
and fined £200.00 ("fine B"). His appeal to Cardiff Crown Court was
dismissed on 21 December 1990, due to his non-appearance and costs of
£433.06 were awarded against him ("fine C").
By a further summons of 24 October 1990, the applicant was
charged with plying for fares without the requisite licence, for which,
on 17 July 1991, he was convicted and fined £100 and £30 costs. On
15 November 1991 his appeal against that conviction was upheld and the
conviction quashed on the basis that, pending the determination of the
proceedings in respect of the Council's refusal to issue the applicant
with a licence, that is 22 September 1990 (when the Crown Court refused
to state a case), the applicant was entitled to ply for fares and had
not therefore committed an offence by doing so before
22 September 1990. Three further summonses issued by the Council were
withdrawn.
The applicant then applied for legal aid to have the conviction
of 10 October 1990 quashed on the same grounds, that is that he had
committed no offence in failing to return his taxi licence plate
pending the outcome of his appeal proceedings. On 3 February 1993 legal
aid was finally refused on the basis that the applicant had no prospect
of success, his application for judicial review or appeal being out of
time. The conviction of 10 October 1990 and the consequent cost orders
therefore still stood.
On 11 April 1995, the applicant was committed to prison by the
Magistrates Court for failure to pay the fines A, B and C. He was
sentenced to 7 days consecutive, 7 days concurrent and 14 days
concurrent respectively. As a result, the applicant claims that he was
imprisoned for 28 days.
While waiting to be taken to Cardiff prison, the applicant asked
to see a solicitor. He claims that he was told to ask for one when he
got to the prison. At the prison he was told to make an application
when he had seen the Governor the next morning. The next morning he
saw the assistant governor who told him to see a Mr. G. He saw Mr. G
on 13 April 1995 and was told that nothing could be done until after
the holidays, as it was Good Friday the next day and a bank holiday on
the Monday and the Court and Solicitors would not be able to do
anything until after the holidays, that is until Tuesday 18 April 1995.
The applicant was eventually visited by a solicitor on 19 April 1995.
That solicitor advised the applicant that he would have served his time
before the Court could do anything and that he should consult him after
his release.
COMPLAINTS
1. The applicant complains that he was imprisoned for an offence
that he did not commit and that this constitutes inhuman and degrading
treatment within the meaning of Article 3 of the Convention.
2. The applicant further complains that he was unlawfully deprived
of his liberty in violation of Article 5 of the Convention. He further
claims that he was deprived of his right to a review of the lawfulness
of his detention under Article 5 para. 4 of the Convention alleging
that its legality was never considered by a court, due to the holiday
period at the time of his imprisonment and that he was not even allowed
to see a solicitor until nearly a week later, when he was told that by
the time the matter came before the court he would have been released
as he would have served his time. Finally he complains that he has
been deprived of his right to compensation as guaranteed by Article 5
para. 5 of the Convention.
3. The applicant further complains that his conviction of
10 October 1990 was contrary to Article 7 and that he was denied legal
aid to appeal against that conviction contrary to Article 6 (3)(c) of
the Convention.
4. The applicant further complains under Article 4 para. 2 of
Protocol No. 7 of the Convention that the result of his appeal in
November 1991 showed that the summons of 5 September 1990 was wrong in
law.
5. The applicant further complains under Article 8 that he has been
subjected to constant harassment from the enforcement officer who
frequently informed him that he would be reported for working while he
was not entitled to. The applicant submits that in view of the
decision of 15 November 1991, this was clearly wrong. Further he
claims that the Council acted maliciously in serving him with summonses
and then withdrawing them.
6. The applicant further complains under Article 13 that he has been
denied an effective remedy.
THE LAW
1. The applicant complains that his imprisonment was contrary to
Article 3 (Art. 3) of the Convention. Article 3 (Art. 3) provides as
follows.
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The case-law of the Convention organs establishes that ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3). The assessment of that minimum
is relative and depends on all the circumstances of the case, such as
the duration of the treatment and its physical or mental effects (see
e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of
18 January 1978, series A no. 25, p. 65, para. 162).
The Commission considers that the applicant has only alleged that
he was wrongfully imprisoned and that he has neither alleged nor shown
that he suffered treatment of such severity as to fall within the scope
of Article 3 (Art. 3).
It follows that this part of the application must be dismissed
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant complains that he was unlawfully deprived of his
liberty contrary to Article 5 (Art. 5) of the Convention. Article 5
(Art. 5) 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;
..............
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.
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 recalls that the applicant was imprisoned pursuant
to the court order of 11 April 1995, for the non-payment of fine A: a
costs order made against him on 22 September 1990 in the proceedings
relating to the Council's refusal to renew his taxi licence, fine B:
a fine of £200.00 following his conviction on 10 October 1990 for
refusing to return his taxi licence to the Council and fine C: a costs
order of £433.06 relating to the costs of his appeal against his
conviction of 10 October 1990, that was dismissed on 21 December 1990
due to his non-appearance.
The Commission finds therefore that the applicant was detained
for non-compliance with orders of the courts to pay three fines and
accordingly that the purpose of the detention fell within Article 5
para. 1(b) (Art. 5-1-b) of the Convention. Insofar however as the
applicant submits that these orders were not lawful, it does not appear
that he has exhausted his domestic remedies as required by Article 26
(Art. 26) of the Convention; he did not appear at his appeal hearing
at Cardiff Crown Court on 21 December 1990, nor did he take judicial
review proceedings to have his conviction of 10 October 1990 quashed.
Insofar as he submits that his detention on the basis on any unlawful
court order was not lawful, the applicant did not apply for habeas
corpus, a remedy that allows for the prompt examination of the
lawfulness of detention (see Eur. Court H.R., Brogan and others v.
United Kingdom, judgment of 29 November 1988, Series A no. 145, p. 25,
para. 40). He has also therefore failed to exhaust his domestic
remedies in this respect and this aspect of the case must be rejected
for failure to exhaust domestic remedies pursuant to Article 27 para.
3 (Art. 27-3) of the Convention and as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
As to the applicant's complaints under Article 5 para. 4
(Art. 5-4) of the Convention that the lawfulness of his imprisonment
was not considered by a court and that during his first eight days of
detention he was not able to consult a solicitor, the Commission
recalls that once an individual has been released Article 5 para. 4
(Art. 5-4) ceases to be applicable, save insofar as he complains about
the speediness with which the lawfulness of his detention was
considered by the court (see No. 9403/81, D.R. 28 p. 235).
The Commission notes that the applicant has been released. It
further notes that whilst in prison the applicant never took habeas
corpus proceedings which would have allowed for court review of the
lawfulness of his detention. While the applicant may have been delayed
access to a solicitor, the Commission notes that even after
consultation with a solicitor, the applicant did not commence
proceedings challenging the lawfulness of his continued detention. In
view of the above the Commission considers that no issue as to the
speediness of the review arises and that no violation of Article 5
para. 4 (Art. 5-4) of the Convention is therefore disclosed.
Accordingly this part of the complaint must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
As to the applicant's complaint that he has been deprived of his
right to compensation as guaranteed by Article 5 para. 5
(Art. 5-5) of the Convention, the Commission recalls that the right to
compensation under this provision 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 rejected the applicant's complaints under Article 5
paras. 1 and 4 (Art. 5-1, 5-4) of the Convention.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Insofar as the applicant invokes Article 7 (Art. 7) of the
Convention in respect of his conviction of 10 October 1990 and Article
6 para. 3(c) (Art. 6-3-c) of the Convention in respect of the refusal
of the legal aid board to grant him legal aid on 3 February 1993, and
even assuming that the applicant exhausted domestic remedies, the
Commission notes that these events took place more than six months
before the applicant's introduction of the complaint before the
Commission.
It follows that this part of the application must be rejected as
inadmissible within the meaning of Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicant complains under Protocol No. 7 Article 4 para. 2
(P7-4-2) of the Convention that the result of his appeal in November
1991 showed that the summons of 5 September 1990 was wrong in law.
The Commission recalls that the United Kingdom has not ratified
Protocol No. 7. Accordingly, its provisions cannot be invoked by the
applicant.
It follows that this part of the application must be dismissed
as incompatible rationae materiae with the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant further complains under Article 8 (Art. 8) that he
has been subject to constant harassment from the enforcement officer
who frequently informed him that he would be reported for working while
he was not entitled to. The applicant submits that in view of the
decision of 15 November 1991, this was clearly wrong. Further he
claims that the Council acted maliciously in serving him with summonses
and then withdrawing them.
The Commission recalls that all the incidents to which the
applicant refers appear to have taken place some time in 1990. Even
assuming therefore that the applicant was able to substantiate his
complaints, and even assuming the applicant had exhausted domestic
remedies, of which there appears no evidence, this part of the
application must be dismissed as not having been submitted within the
requisite six month period, which must have started to run, at the very
latest on 15 November 1991.
It follows that this part of the application must be rejected as
inadmissible within the meaning of Article 27 para. 3
(Art. 27-3) of the Convention.
6. The applicant further complains under Article 13 (Art. 13) of the
Convention that he has been denied an effective remedy. Article 13
(Art. 13) provides as follows.
"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."
As regards the applicant's complaint under Article 5 (Art. 5),
the Commission recalls that Article 5 para. 4 (Art. 5-4) of the
Convention provides a more rigorous procedural guarantee than Article
13 (Art. 13) of the Convention and therefore operates as a lex
specialis with regard to that right, to the exclusion of the more
general provisions of Article 13 (Art. 13) of the Convention (cf., De
Jong, Baljet and Van den Brink v. Netherlands, judgment of 22 May 1984,
Eur. Court HR, Series A no. 77, para 60).
The Commission further recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (see Eur. Court H.R., Powell and Rayner v. United Kingdom,
judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).
In light of the Commission's findings above as to the applicant's
remaining complaints, the Commission considers that the applicant does
not have an arguable claim.
Accordingly this part of the application must be dismissed 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.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy