Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28188/95

by Ken TYRRELL

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Ms. M.-T. SCHOEPFER, 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 29 May 1995 by

Ken TYRRELL against the United Kingdom and registered on 9 August 1995

under file No. 28188/95;

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 British citizen , born in 1949 and presently

resident in South Glamorgan, Wales. The facts as submitted by the

applicant can be summarised as follows.

On 27 February 1990, the Vale of Glamorgan Borough Council ("the

Council") refused to renew the applicant's hackney carriage vehicle

licence ("taxi licence") on the basis that his vehicle did not comply

with certain technical requirements and, the applicant alleges, because

it did not have a black bonnet. The applicant lodged a statutory

appeal in respect of that decision. On 20 July 1990 the Magistrates'

Court upheld the decision of the Council. On 22 September 1990 the

Crown Court dismissed the applicant's appeal on the basis that the

Council had adduced evidence of numerous faults on the relevant vehicle

and the applicant had not called any evidence. Further, the Crown

Court refused to state a case for the opinion of the High Court and

made a costs order of £100.00 ("fine A") against the applicant and in

favour of the Council.

Pending the determination of the applicant's appeal to the Crown

Court referred to above, the applicant continued to operate his taxi

despite the Council's refusal to renew his licence and further refused

to return his licence plate to the Council. Consequently, the Council

served him with several summonses. On 5 September 1990, he was served

with a summons in respect of his refusal to return his taxi licence

plate to the Council, of which he was found guilty on 10 October 1990

and fined £200.00 ("fine B"). His appeal to Cardiff Crown Court was

dismissed on 21 December 1990, due to his non-appearance and costs of

£433.06 were awarded against him ("fine C").

By a further summons of 24 October 1990, the applicant was

charged with plying for fares without the requisite licence, for which,

on 17 July 1991, he was convicted and fined £100 and £30 costs. On

15 November 1991 his appeal against that conviction was upheld and the

conviction quashed on the basis that, pending the determination of the

proceedings in respect of the Council's refusal to issue the applicant

with a licence, that is 22 September 1990 (when the Crown Court refused

to state a case), the applicant was entitled to ply for fares and had

not therefore committed an offence by doing so before

22 September 1990. Three further summonses issued by the Council were

withdrawn.

The applicant then applied for legal aid to have the conviction

of 10 October 1990 quashed on the same grounds, that is that he had

committed no offence in failing to return his taxi licence plate

pending the outcome of his appeal proceedings. On 3 February 1993 legal

aid was finally refused on the basis that the applicant had no prospect

of success, his application for judicial review or appeal being out of

time. The conviction of 10 October 1990 and the consequent cost orders

therefore still stood.

On 11 April 1995, the applicant was committed to prison by the

Magistrates Court for failure to pay the fines A, B and C. He was

sentenced to 7 days consecutive, 7 days concurrent and 14 days

concurrent respectively. As a result, the applicant claims that he was

imprisoned for 28 days.

While waiting to be taken to Cardiff prison, the applicant asked

to see a solicitor. He claims that he was told to ask for one when he

got to the prison. At the prison he was told to make an application

when he had seen the Governor the next morning. The next morning he

saw the assistant governor who told him to see a Mr. G. He saw Mr. G

on 13 April 1995 and was told that nothing could be done until after

the holidays, as it was Good Friday the next day and a bank holiday on

the Monday and the Court and Solicitors would not be able to do

anything until after the holidays, that is until Tuesday 18 April 1995.

The applicant was eventually visited by a solicitor on 19 April 1995.

That solicitor advised the applicant that he would have served his time

before the Court could do anything and that he should consult him after

his release.

COMPLAINTS

1. The applicant complains that he was imprisoned for an offence

that he did not commit and that this constitutes inhuman and degrading

treatment within the meaning of Article 3 of the Convention.

2. The applicant further complains that he was unlawfully deprived

of his liberty in violation of Article 5 of the Convention. He further

claims that he was deprived of his right to a review of the lawfulness

of his detention under Article 5 para. 4 of the Convention alleging

that its legality was never considered by a court, due to the holiday

period at the time of his imprisonment and that he was not even allowed

to see a solicitor until nearly a week later, when he was told that by

the time the matter came before the court he would have been released

as he would have served his time. Finally he complains that he has

been deprived of his right to compensation as guaranteed by Article 5

para. 5 of the Convention.

3. The applicant further complains that his conviction of

10 October 1990 was contrary to Article 7 and that he was denied legal

aid to appeal against that conviction contrary to Article 6 (3)(c) of

the Convention.

4. The applicant further complains under Article 4 para. 2 of

Protocol No. 7 of the Convention that the result of his appeal in

November 1991 showed that the summons of 5 September 1990 was wrong in

law.

5. The applicant further complains under Article 8 that he has been

subjected to constant harassment from the enforcement officer who

frequently informed him that he would be reported for working while he

was not entitled to. The applicant submits that in view of the

decision of 15 November 1991, this was clearly wrong. Further he

claims that the Council acted maliciously in serving him with summonses

and then withdrawing them.

6. The applicant further complains under Article 13 that he has been

denied an effective remedy.

THE LAW

1. The applicant complains that his imprisonment was contrary to

Article 3 (Art. 3) of the Convention. Article 3 (Art. 3) provides as

follows.

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The case-law of the Convention organs establishes that ill-

treatment must attain a minimum level of severity if it is to fall

within the scope of Article 3 (Art. 3). The assessment of that minimum

is relative and depends on all the circumstances of the case, such as

the duration of the treatment and its physical or mental effects (see

e.g. Eur. Court H.R., Ireland v. the United Kingdom judgment of

18 January 1978, series A no. 25, p. 65, para. 162).

The Commission considers that the applicant has only alleged that

he was wrongfully imprisoned and that he has neither alleged nor shown

that he suffered treatment of such severity as to fall within the scope

of Article 3 (Art. 3).

It follows that this part of the application must be dismissed

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

(Art. 27-2) of the Convention.

2. The applicant complains that he was unlawfully deprived of his

liberty contrary to Article 5 (Art. 5) of the Convention. Article 5

(Art. 5) provides, so far as relevant, as follows.

"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:

a. the lawful detention of a person after conviction by

a competent court;

b. the lawful arrest or detention of a person for non-

compliance with the lawful order of a court or in

order to secure the fulfilment of any obligation

prescribed by law;

..............

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful.

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 applicant was imprisoned pursuant

to the court order of 11 April 1995, for the non-payment of fine A: a

costs order made against him on 22 September 1990 in the proceedings

relating to the Council's refusal to renew his taxi licence, fine B:

a fine of £200.00 following his conviction on 10 October 1990 for

refusing to return his taxi licence to the Council and fine C: a costs

order of £433.06 relating to the costs of his appeal against his

conviction of 10 October 1990, that was dismissed on 21 December 1990

due to his non-appearance.

The Commission finds therefore that the applicant was detained

for non-compliance with orders of the courts to pay three fines and

accordingly that the purpose of the detention fell within Article 5

para. 1(b) (Art. 5-1-b) of the Convention. Insofar however as the

applicant submits that these orders were not lawful, it does not appear

that he has exhausted his domestic remedies as required by Article 26

(Art. 26) of the Convention; he did not appear at his appeal hearing

at Cardiff Crown Court on 21 December 1990, nor did he take judicial

review proceedings to have his conviction of 10 October 1990 quashed.

Insofar as he submits that his detention on the basis on any unlawful

court order was not lawful, the applicant did not apply for habeas

corpus, a remedy that allows for the prompt examination of the

lawfulness of detention (see Eur. Court H.R., Brogan and others v.

United Kingdom, judgment of 29 November 1988, Series A no. 145, p. 25,

para. 40). He has also therefore failed to exhaust his domestic

remedies in this respect and this aspect of the case must be rejected

for failure to exhaust domestic remedies pursuant to Article 27 para.

3 (Art. 27-3) of the Convention and as manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

As to the applicant's complaints under Article 5 para. 4

(Art. 5-4) of the Convention that the lawfulness of his imprisonment

was not considered by a court and that during his first eight days of

detention he was not able to consult a solicitor, the Commission

recalls that once an individual has been released Article 5 para. 4

(Art. 5-4) ceases to be applicable, save insofar as he complains about

the speediness with which the lawfulness of his detention was

considered by the court (see No. 9403/81, D.R. 28 p. 235).

The Commission notes that the applicant has been released. It

further notes that whilst in prison the applicant never took habeas

corpus proceedings which would have allowed for court review of the

lawfulness of his detention. While the applicant may have been delayed

access to a solicitor, the Commission notes that even after

consultation with a solicitor, the applicant did not commence

proceedings challenging the lawfulness of his continued detention. In

view of the above the Commission considers that no issue as to the

speediness of the review arises and that no violation of Article 5

para. 4 (Art. 5-4) of the Convention is therefore disclosed.

Accordingly this part of the complaint must be dismissed as

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

(Art. 27-2) of the Convention.

As to the applicant's complaint that he has been deprived of his

right to compensation as guaranteed by Article 5 para. 5

(Art. 5-5) of the Convention, the Commission recalls that the right to

compensation under this provision presupposes that a violation of one

of the other paragraphs of Article 5 (Art. 5) has been established

either by a domestic organ or by the Convention organs (see eg. No.

7950/77, Dec. 4.3.80, D.R. 19 p. 213). In the present case however, the

Commission has rejected the applicant's complaints under Article 5

paras. 1 and 4 (Art. 5-1, 5-4) of the Convention.

It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Insofar as the applicant invokes Article 7 (Art. 7) of the

Convention in respect of his conviction of 10 October 1990 and Article

6 para. 3(c) (Art. 6-3-c) of the Convention in respect of the refusal

of the legal aid board to grant him legal aid on 3 February 1993, and

even assuming that the applicant exhausted domestic remedies, the

Commission notes that these events took place more than six months

before the applicant's introduction of the complaint before the

Commission.

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

inadmissible within the meaning of Article 27 para. 3

(Art. 27-3) of the Convention.

4. The applicant complains under Protocol No. 7 Article 4 para. 2

(P7-4-2) of the Convention that the result of his appeal in November

1991 showed that the summons of 5 September 1990 was wrong in law.

The Commission recalls that the United Kingdom has not ratified

Protocol No. 7. Accordingly, its provisions cannot be invoked by the

applicant.

It follows that this part of the application must be dismissed

as incompatible rationae materiae with the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

5. The applicant further complains under Article 8 (Art. 8) that he

has been subject to constant harassment from the enforcement officer

who frequently informed him that he would be reported for working while

he was not entitled to. The applicant submits that in view of the

decision of 15 November 1991, this was clearly wrong. Further he

claims that the Council acted maliciously in serving him with summonses

and then withdrawing them.

The Commission recalls that all the incidents to which the

applicant refers appear to have taken place some time in 1990. Even

assuming therefore that the applicant was able to substantiate his

complaints, and even assuming the applicant had exhausted domestic

remedies, of which there appears no evidence, this part of the

application must be dismissed as not having been submitted within the

requisite six month period, which must have started to run, at the very

latest on 15 November 1991.

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

inadmissible within the meaning of Article 27 para. 3

(Art. 27-3) of the Convention.

6. The applicant further complains under Article 13 (Art. 13) of the

Convention that he has been denied an effective remedy. Article 13

(Art. 13) provides 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."

As regards the applicant's complaint under Article 5 (Art. 5),

the Commission recalls that Article 5 para. 4 (Art. 5-4) of the

Convention provides a more rigorous procedural guarantee than Article

13 (Art. 13) of the Convention and therefore operates as a lex

specialis with regard to that right, to the exclusion of the more

general provisions of Article 13 (Art. 13) of the Convention (cf., De

Jong, Baljet and Van den Brink v. Netherlands, judgment of 22 May 1984,

Eur. Court HR, Series A no. 77, para 60).

The Commission further recalls that Article 13 (Art. 13) of the

Convention requires a remedy in domestic law only in respect of

grievances which can be regarded as "arguable" in terms of the

Convention (see Eur. Court H.R., Powell and Rayner v. United Kingdom,

judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).

In light of the Commission's findings above as to the applicant's

remaining complaints, the Commission considers that the applicant does

not have an arguable claim.

Accordingly this part of the application must be dismissed 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.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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TYRRELL v. THE UNITED KINGDOM

TYRRELL v. THE UNITED KINGDOM

LEXI