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DE WARRENE WALLER v. THE UNITED KINGDOM

Doc ref: 27284/95 • ECHR ID: 001-2703

Document date: January 18, 1996

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Cited paragraphs: 0
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Outbound citations: 1

DE WARRENE WALLER v. THE UNITED KINGDOM

Doc ref: 27284/95 • ECHR ID: 001-2703

Document date: January 18, 1996

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 27284/95

by Robert J. DE WARRENE WALLER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 28 February 1995

by Robert J. DE WARRENE WALLER against the United Kingdom and

registered on 10 May 1995 under file No. 27284/95;

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 1950. The facts of the

case, as submitted by the applicant, may be summarised as follows.

Suspended orders of imprisonment were made against the applicant

for non-payment of the community charge (poll tax) in 1992 and 1993.

He was not in the event imprisoned, and paid off all his arrears in

1993. The applicant stopped making regular payments on a regular basis

on 14 March 1994, as he was no longer working and had become reliant

on income support.

The applicant was ordered to attend court to show cause why he

should not be imprisoned and on 13 July 1994 a hearing was held before

the Ipswich Magistrates' Court. The applicant did not attend. A

liability order was made for the outstanding amount of community charge

of £624.66, and a warrant was made for the applicant's imprisonment for

69 days.

The applicant surrendered himself into police custody on

28 October 1994 and was transferred to Norwich prison. He was released

after 50 days, having paid off part of the outstanding debt.

The applicant did not challenge the committal order.

COMPLAINTS

The applicant alleges a violation of Articles 5 and 6 of the

Convention, referring generally to the case of Benham v. the United

Kingdom (No. 19380/92, Comm. Rep. 29.12.94, pending before the European

Court of Human Rights). It was only following his release and the

publicity given to the case of Benham that the applicant became aware

of his potential remedy before the Commission.

THE LAW

1. The applicant alleges a violation of Article 5 (Art. 5) of the

Convention. He considers that his detention did not comply with

Article 5 para. 1 (Art. 5-1), and that the effect of Section 108 of the

Courts and Legal Services Act 1990 was to deprive him of the right to

seek compensation in respect of that unlawful detention.

Article 5 (Art. 5) of the Convention 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;

...

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."

Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with a matter "after all domestic remedies

have been exhausted ... ".

The Commission recalls that in the case of Benham (No. 19380/92,

Comm. Report 29.12.94, pending before the European Court of Human

Rights), it expressed its opinion that there had been a violation of

Article 5 (Art. 5) of the Convention in that the applicant's detention

had been unlawful, and that he was unable to sue for unlawful

imprisonment in respect thereof. In that case, the Commission had

recourse to the decision of the Divisional Court in concluding that the

applicant's detention had been unlawful within the meaning of the

Convention.

In the present case, the applicant did not challenge the decision

of the magistrates, either by way of judicial review or by way of case

stated. The Commission does not, therefore, have the benefit of the

views of the superior courts in the matter. The question arises

whether the rule on exhaustion of domestic remedies required the

applicant to put his case to the High Court. The Commission notes in

this connection that although it had recourse to the High Court's

reasoning in concluding that there had been a violation of Article 5

(Art. 5) in the case of Benham, the High Court's findings did not

satisfy the requirements of that provision.

Moreover, without the benefit of the High Court's analysis of the

requirements of the domestic law in the case, it is difficult for the

applicant to satisfy the requirements of the Convention in establishing

that his detention was, or may have been, unlawful in domestic law.

It follows that the applicant has not complied with the

requirements of Article 26 (Art. 26) of the Convention, and this

complaint must therefore be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention because of the absence of legal aid before the

magistrates.

Article 26 (Art. 26) of the Convention further provides that the

Commission may only deal with a matter "within six months from the date

on which the final decision was taken". According to the Commission's

case-law, where there is no remedy against the acts of a domestic

authority, the six months' time limit in Article 26 (Art. 26) runs from

the date of the decision complained of (see, for example, No. 9599/81,

Dec. 11.3.85 D.R. 42 p. 33 and the cases referred to at pp. 40, 41).

Legal aid is not available in community charge committal

proceedings as a matter of law: the magistrates have no discretion

(which could possibly be challenged) to grant legal aid. An

application to the High Court could therefore not have resulted in the

grant of legal aid to the applicant. Further, even if proceedings

before the High Court had been brought and had been successful - as in

the case of Benham - the position as to legal aid would not be

affected.

Accordingly, the Commission finds that the six months' period

referred to in Article 26 (Art. 26) of the Convention began with the

magistrates' decision and committal order on 13 July 1994. However,

the applicant introduced his application only on 17 February 1995, that

is, more that six months after the expiry of the period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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