THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a British subject, born in 1909 and at present

detained in Wormwood Scrubs Prison. He was convicted on 13th December,

1963, at the Central Criminal Court on eleven counts of fraud, forgery

and perjury and sentenced to seven years' imprisonment.

In a previous application (No. 2749/66) lodged with the Commission the

applicant alleged inter alia that with regard to his conviction the

authorities of the United Kingdom had denied him access to the courts

for the purpose of re-opening his case. By three decisions of October

and December, 1966 and July, 1967, the Commission rejected all the

applicant's complaints as inadmissible. In particular his complaints

that he had been refused both a pardon and a retrial were held to be

incompatible with the provisions of the Convention.

In July, 1967, the applicant brought an action for damages before the

High Court of Justice, Queens Bench Division, against a certain D., who

was living in Switzerland. D. was the principal Crown witness in the

criminal proceedings against the applicant. In his statement of claims

endorsed on the Writ of Summons taken out by the applicant on 25th

July, 1967, it is alleged that D. owed him a duty as agent; that he

failed to produce at the applicant's trial the material documents he

had in his possession; and that this negligence lead to the applicant's

conviction. The applicant therefore claimed damages. He also claimed

a declaration that as a result of the defendant's (D.'s) action he was

wrongfully imprisoned. On 8th December, 1967 the High Court of Justice

gave a default judgment against the defendant ordering that he should

pay to the plaintiff damages to be assessed.

Consequently on the basis of the default judgment the applicant

petitioned the Home Secretary for leave to make an application to the

Divisional Court, Queens Bench Division, for an Order of Certiorari.

The applicant states that on or about the 16th December, 1967, the Home

Office refused him leave to move for such a prerogative order.

Subsequently the applicant petitioned again to the Home Office for

access to the Court in order to move for an Order of Mandamus. He

states that on 22nd December, 1967, he received an answer to the effect

that he would be punished by the prison governor if any proceedings

whatsoever were taken by him or on his behalf.

The applicant claims that the default judgment against D. proves that

he was wrongly convicted.

He complains that he is refused access to the Court to move for

Mandamus and Certiorari against his wrongful imprisonment.

He requests the Commission to declare that the United Kingdom

authorities have violated Article 5, paragraph (4), and 6 of the

Convention.

THE LAW

Whereas the applicant complains that, as a result of the default

judgment, he has been denied the right to have the lawfulness of his

detention determined under Article 5, paragraph (4) (Art. 5-4);

Whereas, even if it would be assumed that the default judgment of

itself proved that the applicant's conviction was wrongful, the purpose

of Article 5, paragraph (4) (Art. 5-4) is to ensure judicial control

of arrest and detention but cannot extend to detention which has itself

been ordered by a competent court; whereas therefore, an examination

of the case as it has been submitted, including an examination made ex

officio, does not disclose any appearance of a violation of the rights

and freedoms set forth in the Convention whereas it follows that this

part of the application is manifestly ill-founded within the meaning

of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the applicant's complaint that he was refused

access to the Court to move for Orders of Certiorari and Mandamus, it

is evident that the applicant was attempting, by applying for such

Orders, to obtain a re-opening of the criminal proceedings concluded

against him; whereas it is to be observed that the Convention, under

the terms of Article 1 (Art. 1), guarantees only the right and freedoms

set forth in Section I of the Convention; and whereas, under Article

25, paragraph (1) (Art. 25-1), only the alleged violation of one of

those rights and freedoms by a Contracting Party can be the subject of

an application presented by a person, non-governmental organisation or

group of individuals;

Whereas otherwise its examination is outside the competence of the

Commission ratione materiae; whereas the right to a retrial is not as

such included among the rights and freedoms guaranteed by the

Convention; and whereas, in accordance with the Commission's constant

jurisprudence, proceedings concerning applications for retrial fall

outside the scope of Article 6 (Art. 6) of the Convention (see

applications Nos. 864/60, X. v. Austria - Collection of Decisions, Vol.

9, p. 17 and 1237/61, X. v. Austria - Yearbook V, p. 96); whereas,

since the purpose of his applications for Orders for Certiorari and

Mandamus was essentially to obtain a retrial, it follows that, even if

such orders were appropriate means of achieving that purpose, the

application is incompatible with the provisions of the Convention

within the meaning of Article 27, paragraph (2) (Art; 27-2), thereof.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE