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AS TO THE ADMISSIBILITY OF

Application No. 27286/95

by Melvin John PARKER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

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 17 February 1995

by Melvin John PARKER against the United Kingdom and registered on

10 May 1995 under file No. 27286/95;

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 1956. He lives

in Henlow, in Bedfordshire and has been unemployed and in receipt of

State benefits since about 1990. He is represented before the

Commission by Messrs. Simkins, solicitors, of Baldock. The facts of

the case, as submitted by the applicant's solicitors, may be summarised

as follows.

The applicant was summoned to appear before Ampthill Magistrates'

Court for non-payment of the community charge in October 1992. Legal

aid was not available and the applicant was not represented. The

magistrates were aware that the applicant's only source of income was

the State benefits he received. A warrant was issued committing the

applicant to prison for 30 days. He served the term.

COMPLAINTS

The applicant alleges a violation of Article 5 of the Convention.

He considers that his detention was neither "in accordance with a

procedure prescribed by law" within the first paragraph of Article 5

para. 1 nor "lawful" within the meaning of Article 5 para. 1(a) or (b).

He also alleges a violation of Article 5 para. 5 of the Convention as,

by virtue of Section 108 of the Courts and Legal Services Act 1990, he

was unable to bring an action against the magistrates who imprisoned

him.

The applicant also alleges a violation of Article 6 of the

Convention as legal aid was not available for the hearing in

October 1992.

The applicant refers generally to the case of Stephen Andrew

Benham (No. 19380/92, Comm. Report 29.12.94, pending before the

European Court of Human Rights). It was as a result of that case that

he became aware that the magistrates' court had acted in excess of its

powers.

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 ... and within a period of six months from the date

on which the final decision was taken".

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. It is therefore possible

that the High Court was not an effective remedy within the meaning of

Article 26 (Art. 26) of the Convention.

On the other hand, 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.

However, even if the applicant was not required to pursue an

application to the High Court against the committal order, the

Commission may not deal with the complaint because, 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). The decision in the

present case was taken in October 1992, and the applicant was detained

for 30 days, that is, until some time in November 1992.

Even if the Commission were to take as the "final decision" not

the decision of the magistrates, but the last day on which the

applicant was detained, he has still not introduced his application

within six months, as he first wrote to the Commission on

17 February 1995. An examination of the case does not disclose any

special circumstances which might have interrupted or suspended the

running of that period. In particular, the fact that the applicant

only became aware of the possible Convention issues when he heard about

the Benham case on the radio cannot affect the running of the six

months' period.

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.

In this connection, and to the extent that the complaint is

severable from the remainder of the application, the Commission notes

that 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, if proceedings before

the High Court had been successful - as in the case of Benham - the

position as to legal aid would not be affected.

In connection with this complaint, the Commission finds that the

six months' period referred to in Article 26 (Art. 26) of the

Convention began with the magistrates' decision and immediate committal

order in October 1992. Again, 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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PARKER v. the UNITED KINGDOM

PARKER v. the UNITED KINGDOM

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