EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 32819/96

C. C.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 30 June 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

( paras . 1-14) 1

A. The application

( paras . 2-4) 1

B. The proceedings

( paras . 5-9) 1

C. The present Report

( paras . 10-14) 2

II. ESTABLISHMENT OF THE FACTS

( paras . 15-24) 3

A. The particular circumstances of the case

( paras . 15-18) 3

B. Relevant domestic law and practice

( paras . 19-24) 3

III. OPINION OF THE COMMISSION

( paras . 25-70) 6

A. Complaints declared admissible

( para . 25) 6

B. Points at issue

( para . 26) 6

C. As regards Article 5 para . 3 of the Convention

( paras . 27-50) 6

CONCLUSION

( para . 51) 11

D. As regards Article 5 para . 5 of the Convention

( paras . 52-55) 11

CONCLUSION

( para . 56) 12

E. As regards Article 13 of the Convention

( paras . 57-61) 12

CONCLUSION

( para . 62) 12

F. As regards Article 14 of the Convention

( paras . 63-65) 13

CONCLUSION

( para . 66) 13

G. Recapitulation

( paras . 67-70) 13

CONCURRING OPINION OF MR L. LOUCAIDES 14

PARTLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ, JOINED BY

MM S. TRECHSEL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER,

H. DANELIUS, MRS G.H. THUNE, MM. B. CONFORTI, G. RESS

AND K. HERNDL 15

APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION 17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Jamaican citizen, born in 1926 and is currently in prison in Brixton . He was represented before the Commission by Mr. Philip Leach, a solicitor practising in London.

3. The application is directed against the United Kingdom. The respondent Government were represented by their Agents Mr. Iain Christie and, subsequently, Mr. Hugh Llewellyn , both of the Foreign and Commonwealth Office.

4. The case concerns the automatic pre-trial detention of the applicant pursuant to section 25 of the Criminal Justice and Public Order Act 1994. The applicant invokes Articles 5, 13 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 28 June 1996 and was registered on 8 August 1996.

6. On 25 February 1997 the Commission decided, pursuant to Rule 48 para . 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant’s complaints under Articles 5, 13 and 14 of the Convention.

7. The Government’s observations were received on 6 May 1997 and the applicant’s observations in reply were received on 9 July 1997, the latter after one extension of the time-limit fixed for that purpose. On 30 May 1997 the Commission granted the applicant legal aid for the representation of his case.

8. On 1 December 1997 the Commission declared the application admissible. The text of the Commission’s decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit such further information or observations on the merits as they wished.  No further observations were received.

9. After declaring the case admissible, the Commission, acting in accordance with Article 28 para . 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the absence of any proposals from the parties, the Commission finds that there is no basis on which such a settlement can be effected.

C. The present Report

10. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI_

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI_NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

11. The text of this Report was adopted on 30 June 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para . 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

13. The Commission’s decision on the admissibility of the application is annexed hereto.

14. The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

15. In 1987 the applicant was convicted of manslaughter. The applicant’s record sheet in relation to this conviction reads "manslaughter - heavy drinking session with female. In bed, during which he sexually interferes with her. Struggle ensues during which she dies". The victim was a neighbour of the applicant whose naked body was discovered outside of the door of her apartment wrapped in a bedspread. The applicant was sentenced to four years imprisonment and he was released in August 1988.

16. On 2 January 1996 the applicant was arrested by the police on suspicion of attempted rape of his next door neighbour . The applicant maintained that he had sexual intercourse with the woman with her consent and the woman claimed that the incident took place after she had blacked-out from drinking. He was brought before the Magistrates’ Court on 4 January 1996. While the applicant instructed his solicitor to apply for bail on his behalf, no bail application was made in view of section 25 of the Criminal Justice and Public Order Act 1994. The record of the hearing on 4 January 1996 notes section 25 of the 1994 Act as the reason for the refusal of bail. The applicant was remanded in custody by the Magistrate on 4 and 11 January 1996, the second appearance being necessary in view of the possibility (later abandoned) of the prosecution amending the charge against the applicant.

17. Initially, the applicant was held at Wandsworth prison and he was then transferred to Brixton prison on 9 May 1996. The applicant states that the pre-trial prison regime was difficult in light of his age and failing health, referring to chronic bronchitis which became worse, to high blood pressure and to his pension having been stopped. For the first eight days in Wandsworth , he was confined to his cell for 23 hours each day and, subsequently, he agreed to a suggestion from the prison authorities that (as a person charged with attempted rape) he should be segregated from other prisoners.

18. The applicant was convicted of attempted rape and of assault occasioning actual bodily harm in October 1996. On 17 January 1997 he was sentenced to four years imprisonment, the trial court deducting the period of his pre-trial detention from the sentence imposed pursuant to section 67 of the Criminal Justice Act 1967. On 11 July 1997 the Court of Appeal rejected his appeal against sentence.

B. Relevant domestic law and practice

19. Section 4 of the Bail Act 1976 as amended ("the 1976 Act") provides that a person accused of a criminal offence shall be granted bail except as stated in Schedule 1 to the 1976 Act. Paragraph 2 of Schedule 1 provides that a defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

20. Pursuant to paragraph 9 of Schedule 1 of the 1976 Act, in taking the above decision, the court shall have regard to such of the following considerations, as well as to any other considerations, as appear to that court to be relevant:

- the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);

- the character, antecedents, associations and community ties of the defendant;

- the defendant’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings; and

- except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted.

21. According to paragraph 9A of that schedule, if a defendant (who has been charged with murder, manslaughter, rape, attempted murder or attempted rape) is granted bail and representations have been made as regards the matters mentioned in paragraph 2 of Schedule 1 to the 1976 Act, the court must state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.

22. Section 25 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act") came into force on 10 April 1995 and provides as follows:

"1. A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings.

2. This section applies, subject to subsection 3 below, to the following offences, ... -

(a) murder;

(b) attempted murder;

(c) manslaughter;

(d) rape; and

(e) attempted rape.

3. This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of the United Kingdom of any such offence or of culpable homicide and, in the case of a previous conviction of manslaughter or culpable homicide, if he was then sentenced to imprisonment or, if he was then a child or young person, to long-term detention under any of the relevant enactments ."

23. Section 22 of the Prosecution of Offences Act 1985 enables regulations to be made providing for maximum periods during which an accused may be detained in custody during the preliminary stages of criminal proceedings. The Prosecution of Offences (Custody Time Limits) Regulations 1987 fixed such periods and was amended by the Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 1995 and by section 71 of the Criminal Procedure and Investigations Act 1996.

24. These regulations, as amended, provide that the maximum period a person may be detained between his first appearance at a Magistrates’ Court and his committal for trial is 70 days and that the maximum period of detention between committal and the start of the trial is 112 days. In each case, the period may be extended by a court on the application of the prosecution only if the court is satisfied that there is good and sufficient cause for doing so and that the prosecution has acted with all due expedition. While these provisions apply even in a case to which section 25 of the 1994 Act applies, in such a case bail cannot be granted on the expiry of the time-limit. Accordingly, trial must commence on or before the expiry of the time-limit or any extension thereof.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

25. The Commission declared admissible the applicant’s complaints:

- that the judge before whom he was brought did not have the power to release him pending trial;

- that he had no right to compensation in that respect;

- that he had no effective domestic remedy in these respects; and

- that the choice of persons to whom section 25 of the 1994 Act applies is discriminatory.

B. Points at issue

26. Accordingly, the points at issue are whether there has been a violation of:

- Article 5 para . 3 of the Convention as regards the applicant’s automatic pre-trial detention;

- Article 5 para . 5 of the Convention as regards the right to compensation;

- Article 13 of the Convention as regards the availability of an effective domestic remedy; and

- Article 14 of the Convention as regards the alleged discrimination against him.             

C. As regards Article 5 para . 3 of the Convention

27. Article 5 para . 3 reads as follows:

"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."

28. The applicant considers that his automatic exclusion from bail by section 25 of the 1994 Act deprived him of the protection guaranteed by Article 5 para . 3 of the Convention and outlined in detail in the jurisprudence of the Court (inter alia , Eur . Court HR, De Jong , Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77 and Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, Letellier v. France judgment of 26 June 1991, Series A no. 207 and Clooth v. Belgium judgment of 12 December 1991, Series A no. 225).

29. The Government, in the first place, submit that, prior to section 25 of the 1994 Act coming into force, the courts only rarely granted bail to a person accused of a serious crime and who had a previous conviction for an earlier serious crime. However, the Government point out that the purpose of section 25 is to avoid the unacceptable risk of an error of judgment on the part of the courts in section 25 cases with the serious consequences for the alleged victims or for the proper administration of justice that would entail.

30. Secondly, the Government also argue that "trial within a reasonable time" and "release pending trial" are alternatives. It is submitted that nothing in Article 5 para . 3 prohibits a State from deciding that, in particular circumstances, it would be an unacceptable risk to release such a defendant so long as that person receives a speedy trial, it being noted that the applicant does not contest that he was tried within a reasonable period of time.

31. Thirdly, the Government further consider that the Magistrates’ Court remains the "judge or other officer authorised by law to exercise judicial power" within the meaning of Article 5 para . 3 in view of the remaining powers of those courts including the power to consider at committal hearings whether there was sufficient evidence to continue the proceedings and, if not, to dismiss the case; the power to consider whether the accused has been properly charged and treated and, if not, to consider whether to dismiss the case for abuse of process and to order the accused’s release; and the power to ensure that the trial takes place "speedily" (the "remaining powers" of the Magistrates’ Court). When Parliament can require the Magistrates’ Court to have regard to specified substantive criteria when considering bail (and thereby significantly reduce its discretion), it is consistent for Parliament to determine that, in a limited category of cases, bail is inappropriate so long as the accused retains the protection of the remaining powers of the Magistrates’ Court.

32. The Government argue that, in any event, the United Kingdom Parliament is entitled to conclude that it is appropriate to deny bail to a person accused of a certain grave crime who has been previously convicted of such a grave crime and who, in such circumstances, presents too substantial a risk of re-offending, absconding, interfering with witnesses or otherwise obstructing justice and so causing serious harm to others or to the proper administration of justice.

33. As to the jurisprudence upon which the applicant relies, the Government submit, in particular, that those cases concerned defendants who did not have access to a court with a power to order release in any circumstances or with the power to ensure a speedy trial. Neither case was concerned with whether a State is entitled to deny bail for persons in the circumstances outlined in section 25 where the defendant has the right of access to a Magistrates’ Court with the remaining powers outlined above.

34. Finally, the previous judgments of the Court on Article 5 para . 3 of the Convention were concerned with examples of arbitrary detention and there is nothing arbitrary about section 25 of the 1994 Act, it being a carefully considered and rational scheme advancing the purposes of section 25 outlined above. Even if it were possible to argue that the application of section 25 may be unfair in some circumstances, there was nothing arbitrary in the present case and it is not the function of the Convention organs to consider section 25 in the abstract.

35. The applicant responded to the Government’s observations by commenting, in the first place, on the Government’s submissions as regards domestic law and practice. He considers that the Government’s reference to the practice of the courts before section 25 of the 1994 Act came into force implies that the courts did occasionally grant bail to persons now falling within the scope of section 25. As to the Government’s outline of the purpose of section 25 (the avoidance of judicial error in serious cases), the applicant points out that the Government give no examples of such error, do not submit that such errors were made in the past, conducted no relevant study in that respect prior to the enactment of section 25 and could not give any examples of judicial error when so requested during the debate on section 25 in the House of Lords. Accordingly, the risk of judicial error to which the Government refer is hypothetical and not a real risk. Neither is there any analysis disclosed by the Government which would indicate that those categories of offenders included within section 25 are more likely to, for example, abscond. This renders section 25, in addition to being hypothetical, arbitrary.

36. The Government’s assertion that States are entitled to decide that the release on bail of a certain category of persons would present an unjustifiable risk to the public is, according to the applicant, also illogical and indefensible. The Government appear to consider that a previous serious conviction and a subsequent charge of a similar offence is sufficient justification for section 25 of the 1994 Act but the applicant points out that this assertion is made without any research, evidence or any regard to the individual facts of the case. It is a blanket approach that is indefensible when the fundamental right to liberty is involved and where there exists a well-established procedure by which courts assess the facts of each case in order to decide to release on bail or not. Moreover, the Government imply, without any evidence, that there is a causal link between section 25 defendants and a substantial risk on release.

37. The applicant also considers the Government’s reference to time-limits as regards pre-trial detention misleading. The time-limits are easily and often extended, the arraignment is deemed to be the start of the trial even though the trial proper may not take place for weeks or months thereafter, bail cannot be granted in section 25 cases and even where there is a clear breach of custody time-limits no claim for unlawful imprisonment or release can be brought ( Olotu v. Home Office 1996 No. 0117).

38. Secondly, and as to the Government’s observations on the admissibility and merits of his complaints, the applicant points out, inter alia , that the Government’s submission that trial within a reasonable time or release are alternatives is not sustainable in view of the Wemhoff judgment ( Eur . Court HR, Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7). On the contrary, the accused has the right to a trial within a reasonable period of time and to a judicial determination of the question of pre-trial detention. Furthermore, the Government’s suggestion that the remaining powers of the Magistrate suffice for the purposes of Article 5 para . 3 ignores the requirements of that Article outlined in the Schiesser judgment ( Eur . Court HR, Schiesser v. Switzerland judgment, loc. cit.). The remaining powers are also not relevant to the question at issue namely, the right to a judicial determination of the necessity of pre-trial detention.

39. The applicant also takes issue with the Government’s attempts to distinguish the cases of the European Court of Human Rights upon which he relies noting that the Court has never approved automatic pre-trial detention for a category of accused persons without any regard to their particular circumstances. Moreover, in the absence of any research prior to its enactment and of any examples of judicial error, the Government’s assertion that section 25 is "carefully considered and rational" requires further explanation. As to the Government’s submission about not considering the case in the abstract, the applicant points out that his case is not about an abstract point - he has certain rights under Article 5 para . 3 as to a judicial consideration of the need for his being detained pre-trial and he was not afforded this possibility. It is therefore inappropriate for the Government now to seek to second-guess what a court’s decision would have been had it not deprived the applicant of that judicial determination and decision. In any event, the applicant submits that he had a realistic chance of being granted bail.

40. The Commission recalls that judicial control of interference by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5 para . 3 the purpose being to minimise the risk of arbitrariness as regards the pre-trial detention of accused persons. Judicial control is implied by the rule of law which is one of the fundamental principles of a democratic society, which is expressly referred to in the Preamble to the Convention and from which the whole Convention draws its inspiration ( Eur . Court HR, Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145, p. 32, para . 58).

41. The jurisprudence of the Convention organs has, accordingly, outlined certain procedural and substantive guarantees by which that judicial control is provided.

42. In the first place, the judicial officer before whom the accused is "brought promptly", must be seen to be independent of the executive and of the parties to the proceedings because otherwise his impartiality could be capable of appearing open to doubt ( Eur . Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, para . 31, Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, paras . 42-43 and Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, pp. 11-12, paras . 20-21).

43. Secondly, that judge, having heard the accused himself, must examine all the facts arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the presumption of innocence, a departure from the rule of respect for the accused’s liberty. Those facts must be set out in the decision on the application for release ( Eur . Court HR, Schiesser v. Switzerland judgment, loc. cit. and Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 18, para . 35). For example, the danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked ( Eur . Court HR, Ya_ci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319, p. 19, para . 52). As far as the danger of re-offending is concerned, a reference to a person’s antecedents cannot suffice to justify refusing release ( Eur . Court HR, Muller v. France judgment of 17 March 1997, Reports of Judgments and Decisions 1997-II, No. 32, p. 390, para . 44).

44. Thirdly, the judge must have the power to order an accused’s release ( Eur . Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 76, para . 199 and De Jong , Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 23-24, para . 48).

45. In the present case, the Commission notes that the applicant had been previously convicted of manslaughter and was then charged with attempted rape in January 1996. Therefore, and it is not disputed, the applicant fell within the scope of section 25 of the 1994 Act which had come into effect in April 1995. Accordingly, the Commission observes that, while the applicant was brought before a Magistrate whose independence the Commission has no reason to doubt, the possibility of any consideration by a judge of the pre-trial release of the applicant and of, accordingly, his release on bail had been excluded in advance by the legislature.

46. The Government rely on the remaining powers of the Magistrates’ Court. The Commission notes the powers to dismiss the proceedings against the applicant on the basis of insufficient evidence and on the basis that there had been an abuse of process if the accused had not been properly charged together with the power to release an applicant pursuant to successful habeas corpus proceedings based on the lack of a reasonable basis for arrest. However, and while these are important controls on the reasonableness of an accused’s arrest, the Commission considers that they do not amount to the guarantee under Article 5 para . 3 of a judicial consideration of all the particular facts of a case which militate for and against the continuation of pre-trial detention ( Eur . Court HR, Stögmüller v. Austria judgment of 10 November 1969, Series A no. 9, pp. 39-41, paras . 4-5).

47. In any event, the Commission considers that any application based on insufficient evidence, which application the Government submit can be made at the committal hearing, would fall foul of the "promptly" requirement of Article 5 para . 3 of the Convention. A habeas corpus action challenging the reasonableness of the suspicion upon which the arrest was made could be brought immediately on arrest but would not comply with the principle that the Article 5 para . 3 hearing must take place at the initiative of the State (No. 9017/80, McGoff v. Sweden, D.R. 31, p. 72). In view of the preparation necessary for an abuse of process claim and its non-automatic nature, such a remedy would fall foul of both such requirements of Article 5 para . 3 of the Convention.

48. Moreover, any power of the Magistrate in relation to the applicant’s treatment while in custody is not relevant on the facts of the present case and the power to ensure a speedy trial (even in cases where section 25 applies) is not relevant either, since release prior to trial (if need be, with guarantees that will ensure appearance at trial) and an early trial are not alternative guarantees of Article 5 para . 3 ( Eur . Court HR, Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, pp. 22-23, paras . 5-8 and p. 25, para . 15). 

49. The Government further submit that section 25 of the 1994 Act itself contains a carefully considered and rational risk assessment which means that it is not arbitrary. However, the Commission considers that the exclusion from the risk assessment of a consideration of all of the particular circumstances and facts of each accused’s case (other than the two facts contained in section 25) exposes, of itself, accused persons to an arbitrary deprivation of liberty. By way of illustration, the Commission refers to the situation where, for example, an accused is totally paralysed (No. 4465/70, A.V. v. Austria, Dec. 31.10.71, unpublished).

50. The Commission therefore considers that the effect of section 25 of the 1994 Act was to remove the judicial control required by Article 5 para . 3 of the applicant’s pre-trial detention.

CONCLUSION

51. The Commission concludes, by 19 votes to 12, that in the present case there has been a violation of Article 5 para . 3 of the Convention.

D. As regards Article 5 para . 5 of the Convention

52. Article 5 para . 5 reads as follows:

"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."

53. The Government maintain that there has been no breach of Article 5 para . 3 and, consequently, no breach of Article 5 para . 5. In the alternative, the Government argue that, since the period of pre-trial detention was deducted from the applicant’s sentence, he has no right to compensation.

54. The Commission recalls that, while the Contracting States can make the award of compensation dependent upon the ability of the individual to show damage (pecuniary or non-pecuniary) resulting from the breach, it must be possible to apply for compensation in respect of a deprivation of liberty in violation of, inter alia , Article 5 para . 3 of the Convention ( Eur . Court HR, Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 14, para . 38). The Commission notes that it is not disputed that the applicant’s pre-trial detention complied with domestic law and that the applicant did not have a remedy in domestic law for detention giving rise to a violation of Article 5 para . 3 of the Convention.

55. Accordingly, the Commission considers that there has been a breach of Article 5 para . 5 of the Convention in view of the absence of an enforceable right to compensation in domestic law for the breach of Article 5 para . 3 of the Convention.

CONCLUSION

56. The Commission concludes, by 19 votes to 12, that in the present case there has been a violation of Article 5 para . 5 of the Convention.

E. As regards Article 13 of the Convention

57. Article 13 reads 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."

58. The applicant maintains that there has been a breach of his rights guaranteed by Article 5 of the Convention for which breach he had no domestic remedy.

59. The Government submit that Article 13 is not applicable since the application does not involve any arguable complaints of breaches of the Convention ( Eur . Court HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131). It is also argued that, in any event, Article 13 does not go so far as to guarantee a remedy allowing a State’s laws, as such, to be challenged before a national authority on the grounds of being contrary to the Convention, the Government citing the James and Others together with the Lithgow and Others judgments ( Eur . Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98 and Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102).

60. The Commission notes that the applicant has not invoked Article 5 para . 4 of the Convention which must be regarded as the lex specialis in respect of complaints about detention which was unlawful in domestic law and in terms of the Convention ( Eur . Court HR, Brogan and Others v. the United Kingdom, loc. cit., p. 65, para . 121). The Commission has also concluded above as to a violation of Article 5 para . 5 of the Convention.

61. Accordingly, the Commission considers that this complaint under Article 13 amounts to a complaint about the lack of a remedy to challenge domestic legislation (section 25 of the 1994 Act) before a national authority on the basis that it is contrary to the Convention. However, Article 13 of the Convention does not guarantee such a remedy ( Eur . Court HR, James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98 and Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102).

CONCLUSION

62. The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention.

F. As regards Article 14 of the Convention

63. The applicant further complains that section 25 of the 1994 Act constitutes a discriminatory difference in treatment contrary to Article 14 of the Convention, which latter Article the Commission considers has been raised in conjunction with Article 5 para . 3 of the Convention. Article 14 of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in the 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."

64. The Government refer to the Stubbings judgment ( Eur . Court HR, Stubbings v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decision for 1996-IV, pp. 1506-07, para . 70) arguing that it is well within the State’s margin of appreciation to conclude that persons who have been previously convicted of a grave offence should be differently treated for the purposes of bail once they are accused of having committed another such offence and that it would be inappropriate to grant bail in view of the risks involved for the public and the proper administration of justice.

65. The Commission observes that the essential purpose of section 25 is to select those accused persons to whom bail cannot be granted in view of their past conviction or convictions and current charge or charges. Since the Commission has already considered the compliance of section 25 with Article 5 para . 3 above, it is of the view that it is not necessary to also consider section 25 of the 1994 Act under Article 14 in conjunction with Article 5 para . 3 of the Convention.

CONCLUSION

66. The Commission concludes, by 19 votes to 12, that in the present case it is not necessary to consider the applicant’s complaint under Article 14 in conjunction with Article 5 para . 3 of the Convention.

G. Recapitulation

67. The Commission concludes, by 19 votes to 12, that in the present case there has been a violation of Article 5 para . 3 of the Convention ( para . 51).

68. The Commission concludes, by 19 votes to 12, that in the present case there has been a violation of Article 5 para . 5 of the Convention ( para . 56).

69. The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention ( para . 62).

70. The Commission concludes, by 19 votes to 12, that in the present case it is not necessary to consider the applicant’s complaint under Article 14 in conjunction with Article 5 para . 3 of the Convention ( para . 66).

        M. de SALVIA                       S. TRECHSEL

         Secretary                          President

      to the Commission                  of the Commission

(Or. English)

CONCURRING OPINION OF MR L. LOUCAIDES

I agree with the conclusions of the majority in this case. However, as regards Article 5 para . 3 of the Convention, my reasoning leading to a violation is as follows.

It seems that there is no express provision in Article 5 guaranteeing the exercise of a discretion by judicial authorities in determining a pre-trial detention. But I cannot accept that the provisions of Article 5 were intended to confine the judicial task, in such an important subject as the liberty of the person, to simply deciding whether certain basic general conditions regarding the legality of detention were satisfied.

I believe that the conditions set out in that Article were the minimum requirements for the legality of detention. There remained an area of judicial discretion and control in the determination of whether the detention of a person was justified in the interests of justice on the basis of the facts and circumstances of a particular case. A judge had the power to order the detention of a person from the provisions of Article 5 paras . 1(c) and 3 of the Convention if the conditions prescribed therein were satisfied. But the judge was not obliged to order such detention automatically in any case where these condition were met. The existence of a residue of judicial discretion is clearly implied from the provisions of Article 5 of the Convention. A law which deprives the judge of such a judicial discretion, as in the present case, amounts, in my opinion, to a violation of the provisions at issue of Article 5 of the Convention.

(Or. English)

PARTLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ, JOINED BY

MM S. TRECHSEL, G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, J.-C. SOYER,

H. DANELIUS, MRS G.H. THUNE, MM. B. CONFORTI, G. RESS AND K. HERNDL

We disagree with the conclusion that there has been a violation of Article 5 para . 3 of the Convention.

According to this provision, a person "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 release pending trial."

It is undisputed that the applicant was brought promptly before a Magistrate fulfilling the basic requirements of "a judge or other officer authorised to exercise judicial power". The question is whether the fact that, by virtue of Section 25 of the Criminal Justice and Public Order Act 1994, the judge lacked power to release the applicant on bail is, in the circumstances of the case, compatible with Article 5 para . 3.

The provision on the right to release must be read in conjunction with para . 1 of Article 5. As a point of departure, no right to release for a person brought promptly before a judge can be inferred from para . 3 if the deprivation of liberty is in conformity with para . 1.

Para . 1 firstly requires that any deprivation of liberty takes place only "in accordance with a procedure prescribed by law", i.e. in accordance with both the substantive and procedural requirements of domestic law. Secondly, the kind of deprivation of liberty at issue here must be based "on reasonable suspicion of [the person in question] having committed an offence"( para . 1.c).

It is not contested that the deprivation of liberty took place "in accordance with a procedure prescribed by law." Nor is there any dispute that, when brought before the judge, the applicant was under "reasonable suspicion of having committed an offence" within the meaning of para . 1.c which does not, for example, require the deprivation of liberty to be "necessary in a democratic society" (cf. e.g. Article 8 para . 2).

In view of this, when brought before the judge on 4 January 1996 the applicant could derive from Article 5 para . 3 no right to be released. That the release, according to the last sentence of para . 3, "may be conditioned by guarantees to appear for trial", does not create any obligation to provide for an alternative of release on bail at the "first stage" of a deprivation of liberty, if that deprivation of liberty is in conformity with Article 5 para . 1.c. Therefore the fact that the judge deciding on the detention on remand had no option of granting the applicant bail, i.e. he lacked the power to do something the Convention in any case did not oblige him to do, does not violate Article 5 para . 3.

It is true that while reasonable suspicion that the person arrested has committed an offence within the meaning of Article 5 para . 1.c is a sufficient condition for detention at the early stages of the deprivation of liberty, after a certain lapse of time such a suspicion no longer alone suffices but the supervisory organs must examine "the grounds which persuaded the judicial authorities to decide" that the detention should be continued (e.g. Eur . Court HR, B. v. Austria judgment of 28 March 1990, Series A no. 175, p. 16, para . 42). At this "second stage" of the detention the kind of considerations put forward in para . 43 of the Report become relevant. For example, "the possibility of a severe sentence is not sufficient after a certain lapse of time to justify the length of detention" (Id. para . 44). It is not excluded that at such a later stage the application of Section 25 of the Criminal Justice and Public Order Act 1990 could lead to situations incompatible with Article 5 para . 3 as it has been interpreted by the Court.

However, it is not necessary to take a stand on the question as to when such a stage would possibly have been reached, as in the circumstances of this case it was in any event not reached by the time the applicant’s detention on remand came to an end in October 1996. Until then it was enough, from the point of view of Article 5, that he was under a "reasonable suspicion of having committed a criminal offence". That during this period the English courts lacked the power of doing what they in any case were not obliged to do under the Convention cannot in our view constitute a violation of Article 5 para . 3. In reaching this conclusion we note also the guarantees mentioned in para . 31 of the Report.

It follows that there has been no violation of Article 5 para . 5 either.