AS TO THE ADMISSIBILITY OF
Application No. 32713/96
by Moses Matumbai WANYONYI
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM. E. BUSUTTIL, Acting President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 10 June 1996 by
Moses Matumbai WANYONYI against the United Kingdom and registered on
22 August 1996 under file No. 32713/96;
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 citizen of Kenya belonging to the Luhya people
and currently resides in Kitale, Kenya. Before the Commission, he is
represented by Suriya & Co., a solicitors firm in London, which firm
also represented the applicant in the domestic proceedings.
When introducing the application, the applicant's representatives
informed the Commission that they were acting under general
instructions from the applicant and that they had been unable to
establish any contacts with him since his expulsion from the United
Kingdom in November 1995.
By letter of 15 December 1997, the applicant's representatives
submitted an authority for the applicant's representation in
proceedings before the Commission signed by the applicant in person.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 25 October 1993 at about 01.00 hours, in London, the police
stopped the car driven by the applicant's brother. According to the
police the car had driven through a red traffic light. The applicant
was a passenger in that car. The police arrested the applicant.
The applicant was racially abused and forcibly placed face down
in the Metropolitan Police van. According to the Custody Record of the
Harrow Road Police Station the applicant arrived there at 01.10 hours.
He was carried directly to cells, where he was placed face down on the
floor by about six police officers, including a woman. In the presence
of these police officers, the applicant was stripped naked and forcibly
searched for drugs, including a rectal examination. No drugs of any
description were found. No senior officer had authorised the strip
search.
In the course of the strip search, the applicant bit one of the
male police officers through the latter's shirt and vest and inflicted
a wound. The applicant, being a Luhya who have a strong cultural
tradition against nakedness following circumcision carried out when
reaching adulthood, felt greatly humiliated by being exposed naked, in
particular as one of the officers present was a woman.
After the strip search the applicant was left naked in the cell,
his hands being cuffed and his legs restrained. At a later point in
time, a doctor was sent for by the police. The police doctor failed to
attend to the applicant's injuries as did a second doctor called later
that morning.
Whilst the applicant was detained, a consular official of the
Consulate of Kenya attempted to speak with the applicant by telephone,
but was denied access to the applicant. On 25 October 1993, at about
11.35 hours, the applicant was photographed by the police.
After about 35 hours, the applicant was released on bail by a
Magistrate's Court. On 26 October 1993, shortly after his release, the
applicant consulted a doctor.
In a letter dated 26 May 1994 and addressed to the applicant's
representative, this doctor confirmed that the applicant had consulted
him on 26 October 1993 and had told him that he had been arrested and
ill-treated by the police. In his letter, the doctor further listed the
injuries he had found when he examined the applicant on
26 October 1993.
The applicant was subsequently indicted to appear before the
Knightsbridge Crown Court on two charges of assault committed on
25 October 1993; one count in respect of Mr I.H. of assault occasioning
actual bodily harm under Section 47 of the Offences Against the Person
Act 1861 as regards the applicant's biting of a police officer, and one
count in respect of Ms K.G. of common assault under Section 39 of the
Criminal Justice Act 1988 in that the applicant had assaulted her while
resisting his arrest.
The applicant was tried on these offences in July 1994, but as
the jury failed to agree a verdict a retrial took place.
On 3 September 1994, the Crown Court ordered the submission by
the prosecution of the Fixed Penalty Notice for a traffic offence. As
the prosecution failed to submit this document, the Crown Court
repeated this order on 28 October 1994. On 7 November 1994, the
prosecution informed the Crown Court that the Notice was no longer
available. At some unspecified later point in time, the prosecution did
submit a Traffic Notice to the Crown Court from which it appeared that
it had probably been processed between 2 and 5 November 1993.
On 22 February 1995, Mr Fedor of the UK Forensic Science Services
Ltd, on instructions of the applicant's representative, examined the
shirt and vest Mr I.H. wore when he was bitten by the applicant and
stated his findings in his Report dated 27 February 1995. On
3 March 1995, Mr Fedor examined the police uniform jumper which Mr I.H.
wore at the time the applicant bit him. Mr Fedor further examined
another police uniform jumper. He stated his findings of his
examination in a Report dated 6 March 1995.
On 31 March 1995, after a trial which lasted 16 days, the
Knightsbridge Crown Court convicted the applicant of two counts of
assault and sentenced him to 15 months' imprisonment.
On 14 December 1995, the Court of Appeal refused the applicant's
application for leave to appeal. As soon as the applicant became
eligible for release, he was deported on the order of the Home
Secretary.
No proceedings have been brought against the applicant's brother
for having driven through a red traffic light on 25 October 1993.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of
having been racially abused, assaulted and injured by the police when
he was arrested and subsequently strip searched and that this strip
search took place in the presence of a female police officer.
2. The applicant complains that his arrest and detention, aggravated
by the failure to provide medical treatment, was contrary to Article 5
para. 1 of the Convention.
3. The applicant complains that the failure to produce him to a
court within 24 hours after his arrest, aggravated by the fact that he
was in need of medical attention and that the consular authorities of
Kenya were denied access to him, is contrary to Article 5 para. 3 of
the Convention.
4. The applicant complains under Article 6 para. 1 of the Convention
that he did not receive a fair trial in the criminal proceedings
against him in that the public prosecutor failed to cooperate with the
forensic scientist instructed by the defence by not making available
in good time to this scientist certain items of evidence, i.e. two
pullovers produced by the State, and failed to cooperate with Home
Office forensic scientists, in that police officers were allowed
unrestricted access to those items of evidence, in that material
exhibits by the State were tampered with, in that the photograph the
police took of the applicant shortly after his arrest was destroyed,
in that the notes of the doctors who had examined but not treated the
applicant were not made available to the defence, in that the State
failed to comply with court orders in good time, in that a document,
i.e. the Fixed Penalty Notice, was forged in order to bolster the
State's case and in that an improper claim of Public Interest Immunity
was initially made in respect of two Home Office files on the
applicant.
5. The applicant complains that the strip-search was contrary to his
rights under Article 8 of the Convention in that it constituted an
unjust interference with his right to respect for his private life.
6. The applicant complains under Article 13 of the Convention that
he was deprived of an effective remedy of trial by jury given the
obstruction of justice by the prosecution authorities, the non-
availability of legal aid to indigent prisoners even where counsel has
advised there is an arguable case, given the non-availability of trial
transcripts to the Court of Appeal so that it did not have available
all the relevant material, the requirement of leave and the summary
nature of the procedure at the leave stage and the fact that the
applicant was deported before his application for leave to appeal could
be heard.
7. The applicant finally complains under Article 14 of the
Convention of discriminatory treatment in that the racial abuse by
police officers, all of whom were white, at the time of his arrest and
the way in which he, being a black person, was subsequently treated
would not have occurred had he been white
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of having been racially abused, assaulted and injured by the
police when he was arrested and subsequently strip searched and that
this strip search took place in the presence of a female police
officer. The applicant further complains that the strip search was
contrary to his rights under Article 8 (Art. 8) of the Convention and
that he was subjected to discriminatory treatment contrary to Article
14 (Art. 14) of the Convention.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 8 (Art. 8) of the Convention reads:
"1. Everyone has the right to respect for his private ...life
...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
Article 14 (Art. 14) of the Convention states as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission notes that the applicant has not taken any
proceedings against the public authorities challenging the lawfulness
of the strip search and/or the way in which the police treated him when
he was arrested and subsequently strip searched.
It is true that, for practical reasons, it may have been
difficult for the applicant to contact and instruct his legal
representative in the United Kingdom after his expulsion from the
United Kingdom. However, the Commission notes that the deportation of
the applicant did not take place until his release from prison, over
two years after the events complained of. Moreover, as the applicant's
representative has submitted an authority for representation before the
Commission signed by the applicant, it appears that contacts between
them have been re-established in the meantime.
In these circumstances, the Commission considers that it was open
to the applicant to instruct his legal representative in the United
Kingdom to take appropriate legal action against the responsible public
authorities in connection with the alleged treatment by the police
during and after his arrest. The Commission is, therefore, of the
opinion that, as regards this part of the application, the applicant
has failed to exhaust domestic remedies within the meaning of
Article 26 (Art. 26) of the Convention.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention for non-
exhaustion of domestic remedies.
2. The applicant complains that his arrest and detention, aggravated
by the failure to provide medical treatment, was contrary to Article 5
para. 1 (Art. 5-1) of the Convention and that the failure to produce
him to a court within 24 hours after his arrest, aggravated by the fact
that he was in need of medical attention and that the consular
authorities of Kenya were denied access to him, is contrary to Article
5 para. 3 (Art. 5-3) of the Convention.
Article 5 (Art. 5) of the Convention, insofar as relevant, reads:
"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:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
2. ...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial."
The Commission notes that the applicant was arrested in the early
morning hours of 25 October 1993 and that, after about 35 hours, he was
released on bail by a Magistrate's Court.
Insofar as the applicant raises complaints under Article 5 para.
1 (Art. 5-1) of the Convention, the Commission notes that the applicant
has not substantiated this complaint by specifying in what respect he
considers his arrest and detention unlawful both in domestic terms as
in Convention terms. It further does not appear that the applicant
raised this issue when he was brought before the Magistrate.
Furthermore, the alleged failure to provide him with medical treatment
during his detention is not an element which in itself has a bearing
on the lawfulness of his arrest and detention under the terms of
Article 5 (Art. 5) of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not receive a fair trial in the criminal
proceedings against him in that the public prosecutor failed to
cooperate with the forensic scientist instructed by the defence and
with Home Office forensic scientists, police officers were allowed
unrestricted access to those items of evidence, material exhibits by
the State were tampered with, the photograph the police took of the
applicant shortly after his arrest was destroyed, the notes of the
doctors who had examined but not treated the applicant were not made
available to the defence, the State failed to comply with court orders
in good time, a document, i.e. the Fixed Penalty Notice, was forged in
order to bolster the State's case and an improper claim of Public
Interest Immunity was initially made in respect of two Home Office
files on the applicant.
The applicant has further complained under Article 13 (Art. 13)
of the Convention that he was deprived of a trial by jury, that no
legal aid is available to indigent prisoners even where counsel has
advised there is an arguable case, that the trial transcripts were not
available to the Court of Appeal, that one has to seek leave to appeal
and that the latter proceedings are summary in nature and that he had
been deported before his application for leave to appeal could be
heard.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by a ... tribunal
established by law..."
Article 13 (Art. 13) of the Convention 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."
As the proceedings at issue concern a determination of a criminal
charge within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, the Commission will consider also the complaints raised
under Article 13 (Art. 13) of the Convention under Article 6 para. 1
(Art. 6-1) of the Convention, as the requirements of Article 13
(Art. 13) are less strict than and are absorbed by the more stringent
requirements of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No.
24142/94, Dec. 6.4.95, D.R. 81, p. 108).
The Commission recalls that, even if in certain Contracting
States trial by jury is an important element in ensuring fairness in
the system of criminal justice, it is not an essential aspect of a fair
hearing in the determination of a criminal charge within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 14739/89,
Dec. 9.5.89, D.R. 60, p. 296). Furthermore, although not guaranteeing
a right of appeal, Article 6 para. 1 (Art. 6-1) of the Convention
applies to existing appeal procedures without, however, going as far
as to require a full second hearing (cf. No. 9315/81, Dec. 15.7.83.
D.R. 34, p. 96).
The Commission further recalls that Article 6 para. 1 (Art. 6-1)
of the Convention does not govern the admissibility and probative value
of evidence. Questions concerning the admissibility of evidence are
primarily a matter for regulation by national law and, as a general
rule, it is for the national courts to assess the evidence before them.
The task of the Convention organs under Article 6 para. 1 (Art. 6-1)
is not to give a ruling as to whether evidence was properly admitted,
but rather to ascertain whether the proceedings as a whole, including
the way in which the evidence was taken, were fair. In addition, all
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument (cf. Eur.
Court HR, Van Mechelen and Others v. the Netherlands judgment of 23
April 1997, Reports 1997-III, No. 36, p. 711, paras. 50-51).
The Commission notes that the applicant, who was assisted by
counsel, was convicted on two counts of assault following adversarial
proceedings before the Crown Court which lasted 16 days and that his
subsequent application for leave to appeal was rejected by the Court
of Appeal.
Assuming, for the purposes of Article 26 (Art. 26) of the
Convention, that the applicant's application for leave has been
rejected by the full Court of Appeal and insofar as the applicant has
substantiated the present complaints, the Commission has found no
indication in the applicant's submissions that in the domestic
proceedings, in which he was represented by counsel, he was not given
any or sufficient opportunity to state his case, to challenge the
admissibility and probative value of the evidence against him or to
submit whatever he found relevant.
In these circumstances, the Commission considers that there is
no basis for holding that the proceedings against the applicant fell
short of the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this part of the application 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.
M.F. BUQUICCHIO E. BUSUTTIL
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy