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DAVY v. THE UNITED KINGDOM

Doc ref: 27771/95 • ECHR ID: 001-2512

Document date: November 29, 1995

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Cited paragraphs: 0
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DAVY v. THE UNITED KINGDOM

Doc ref: 27771/95 • ECHR ID: 001-2512

Document date: November 29, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 27771/95

by Peter DAVY

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, 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 6 April 1995 by

Peter DAVY against the United Kingdom and registered on 30 June 1995

under file No. 27771/95;

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 United Kingdom citizen born in 1969. He lives

in Harlington and is currently unemployed. He is represented before

the Commission by Messrs. Turberville Woodbridge, solicitors, of

Uxbridge. The facts of the case, as submitted by the applicant's

solicitors, may be summarised as follows.

The applicant was summoned to appear before Uxbridge Magistrates'

Court for non-payment of the community charge in December 1993. He was

committed to prison for 42 days on 25 February 1994, when the committal

order was suspended. The applicant was again summoned to the Court on

29 July 1994: he paid arrears which had accrued, and the Court re-

suspended the committal warrant. On 28 October 1994 the Court ordered

that the matter be adjourned for two weeks until 11 November 1994 in

order for the applicant to produce evidence of his financial situation.

On 11 November 1994, even though the applicant was in a position

to pay the arrears, the Court made a committal order against him and

he served the term of imprisonment. Legal aid was not available for

the proceedings and the applicant was not represented.

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 29.11.94, 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.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this part of the application to the

respondent Government.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN its examination of the complaints under

Article 6 (Art. 6) of the Convention concerning the proceedings

in the present case,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

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