Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30061/96

by Peter HAMILTON

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 30 December 1994

by Peter HAMILTON against the United Kingdom and registered on

5 February 1996 under file No. 30061/96;

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 an Irish national, born in 1953, and is detained

in the Maze prison in Northern Ireland. Before the Commission, he is

represented by Ms P. Coyle, a solicitor practising in Belfast.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 30 November 1971 the applicant was convicted by the Belfast

City Commission of, inter alia, having caused bodily harm to Ms I.G.

by the use of explosive substances and sentenced to five years'

imprisonment. He was released in due course. On 24 May 1976 the

applicant was convicted by the Belfast City Commission of having killed

five persons on 13 August 1975 by a bomb explosion and sentenced to

life imprisonment.

Claims for criminal injury compensation were filed by Ms I.G. and

the personal representatives of four of the five persons killed on

13 August 1975. These claims resulted in payment by the Secretary of

State, pursuant to the Criminal Injuries to Persons (Compensation) Act

(Northern Ireland) 1968, of a total amount of £ 17,467.99 to the

claimants for criminal injuries directly attributable to the offences

of which the applicant had been convicted.

Following a major incident in the Maze prison in September 1983,

where he was detained at that time, the applicant brought proceedings

against the Northern Ireland Office (hereinafter referred to as "NIO")

and the Governor of the Maze prison by summons of 31 January 1984,

claiming damages for personal injuries and unlawful treatment inflicted

by the prison officers immediately after the incident.

By judgment of 25 June 1991, the High Court of Justice in

Northern Ireland found in favour of the applicant and ordered the

defendants to pay the sum of £ 7,500 together with 15% interest per

annum until payment to the applicant and awarded the applicant's legal

costs incurred against the defendants. The High Court further ordered

that the enforcement of the judgment be stayed for a period of three

weeks.

On 30 July 1991, the Secretary of State started proceedings

against the applicant before the Belfast Recorder's Court claiming

reimbursement, pursuant to Section 7 (1) of the Criminal Injuries to

Persons (Compensation) Act (Northern Ireland) 1968, from the applicant

of the sums awarded to the five persons to whom compensation had been

awarded for the offences of which the applicant had been convicted.

On the basis of Section 7 (1) of the Criminal Injuries to Persons

(Compensation) Act (Northern Ireland) 1968, a county court may, on an

application made to it by the Secretary of State, make an order

directing a person, who has been convicted of a criminal offence in

respect of which compensation under this Act has been paid for criminal

injuries directly attributable to that offence, to reimburse to the

Secretary of State the whole or any specified part of the amount of

compensation paid.

On 29 October 1991 the Recorder found in favour of the State

Secretary and ordered the reimbursement of £ 7,500. The applicant filed

an appeal against this decision with the High Court of Justice in

Northern Ireland on 12 November 1991. The High Court rejected the

applicant's appeal on 30 June 1994.

COMPLAINTS

1. The applicant complains that the reimbursement ordered deprived

him of his right under Article 5 of the Convention to compensation for

having been subjected to a treatment contrary to Article 3 whilst he

was in detention.

2. The applicant complains that the reimbursement ordered deprives

him of his rights under Articles 3 and 5 of the Convention to a lawful

sanction against further assaults to which he may be subjected whilst

detained, as it would be open for the NIO to follow the same procedure.

3. The applicant finally complains under Article 14 of the

Convention that he has been discriminated against, as the NIO does not

claim reimbursement from other persons in similar circumstances.

THE LAW

1. The applicant complains that the reimbursement ordered deprived

him of his right under Article 5 (Art. 5) of the Convention to

compensation for having been subjected to a treatment contrary to

Article 3 whilst he was in detention.

Article 5 (Art. 5) of the Convention, insofar as relevant, reads:

"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 right to compensation under

paragraph 5 of Article 5 (Art. 5-5) of the Convention, which paragraph

the applicant relies upon, is limited to situations in which a

violation of one of the paragraphs 1 to 4 of Article 5

(Art. 5-1, 5-2, 5-3, 5-4) of the Convention has been established,

either by a domestic authority or by one of the Convention institutions

(cf. No. 24722/94, Dec. 10.4.95, D.R. 81, p. 130).

The Commission notes that, on 24 May 1976, the applicant was

convicted and sentenced to life imprisonment, which sentence he was and

still is serving. The applicant's detention falls therefore within the

scope of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. It has

not appeared nor has it been argued that the applicant's detention is

contrary to his rights under Article 5 paras. 1 to 4

(Art. 5-1, 5-2, 5-3, 5-4) of the Convention.

Furthermore, the right to compensation under Article 5 para. 5

(Art. 5-5) of the Convention does not include compensation for

violations of any other provisions of the Convention, such as Article

3 (Art. 3).

It follows that this complaint must be rejected under Article 27

para. 2 (Art. 27-2) of the Convention for being incompatible ratione

materiae with the provisions of the Convention.

2. The applicant further complains that the reimbursement ordered

deprives him of his rights under Articles 3 and 5 (Art. 3, 5) of the

Convention to a sanction against further possible assaults, as it would

be open for the NIO to follow the same procedure.

The Commission notes that, by judgment of 25 June 1991, the High

Court of Justice in Northern Ireland, awarded the applicant the sum of

£ 7,500 in damages for personal injuries and unlawful treatment

inflicted by prison officers.

Insofar as the applicant argues that the compensation of £ 7,500

should be exempted from the application of Section 7 (1) of the

Criminal Injuries to Persons (Compensation) Act (Northern Ireland) 1968

and even assuming that he could claim to be a victim within the meaning

of Article 25 (Art. 25) of the Convention of a violation of his rights

under Articles 3 and 5 (Art. 3, 5) of the Convention, the Commission

considers that the Convention does not include any provision to the

effect that compensation awards for non-pecuniary damages awarded by

domestic courts are to be exempted from the application of Section 7

(1) of the Criminal Injuries to Persons (Compensation) Act (Northern

Ireland) 1968 or any other form of attachment under domestic law.

The answer to the question whether or not such awards, including

awards made by the European Court under Article 50 (Art. 50) of the

Convention, are to be exempted from attachement is left to the national

authorities acting under the relevant domestic law (cf., Eur. Court HR,

Allenet de Ribemont v. France judgment of 7 August 1996, to be

published in Reports 1996, para. 19).

Unlike the situation in the Ringeisen case, it has not been

argued nor has it appeared that, under domestic law, compensation

awards for non-pecuniary damages are exempted from attachment (Eur.

Court HR, Ringeisen v. Austria judgment (Article 50) (Art. 50) of 22

June 1972, Series A no. 15, p. 10, para. 27 and Ringeisen v. Austria

judgment (interpretation of judgment of 22 June 1972) of 23 June 1973,

Series A no. 16, p. 9, para. 15).

It follows that also this part of the application must be

rejected for being incompatible ratione materiae with the provisions

of the Convention.

Insofar as the applicant complains that the reimbursement order

constitutes a deprivation of protection against possible further

assaults, the Commission considers that the above finding does not

exempt States from their obligation to provide adequate and effective

protection against assault or other treatment prohibited under

Article 3 (Art. 3) of the Convention, including the institution of

disciplinary or criminal proceedings in appropriate cases.

It follows that this part of the complaint must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant finally complains under Article 14 (Art. 14) of the

Convention that he has been discriminated against, as the NIO does not

claim reimbursement from other persons in similar circumstances.

Article 14 (Art. 14) of the Convention provides:

"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 recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention. It has no independent

existence since it has effect solely in relation to "the enjoyment of

the rights and freedoms" safeguarded by those provisions. Although the

application of Article 14 (Art. 14) does not necessarily presuppose a

breach of those provisions, there can be no room for its application

unless the facts at issue fall within the ambit of one or more of the

latter (cf. No. 19819/92, Dec. 5.7.94, D.R. 78, p. 88).

Having found that the Convention does not contain any provision

to the effect that compensation awards for an established violation of

the prohibition of a treatment contrary to Article 3 (Art. 3) of the

Convention be exempted from the application of Article 16 (1) of the

1977 Order or any other form of attachment under domestic law, the

alleged discrimination consequently falls outside the scope of Article

14 (Art. 14) of the Convention.

It follows that also this part of the application must be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention for

being incompatible ratione materiae with the provisions of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HAMILTON v. THE UNITED KINGDOM

HAMILTON v. THE UNITED KINGDOM

LEXI