Lexploria

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

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WANYONYI v. THE UNITED KINGDOM

WANYONYI v. THE UNITED KINGDOM

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