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AS TO THE ADMISSIBILITY OF

Application No. 18120/91

by Paul BURNS and Eleanor TUMILSON

against the United Kingdom

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 8 November 1990

by Paul BURNS and Eleanor TUMILSON against the United Kingdom and

registered on 24 April 1991 under file No. 18120/91;

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 first applicant is a citizen of the United Kingdom, born in

1964 and resident in Belfast. The second applicant is his fiancée.

She was born in 1967 and also resides in Belfast. They are represented

before the Commission by Messrs. Flynn and McGettrick, Solicitors,

Belfast.

The facts of the present case, as submitted by parties, may be

summarised as follows:

At approximately 19.45 hours on 30 September 1990 the first

applicant was driving his car, accompanied by the second applicant,

when they were stopped by soldiers of the Ulster Defence Regiment at

Hope Street, Belfast. The soldiers required the applicants to give

their names, addresses and details of where they were coming from and

going to, which they did. The soldiers appeared to check these details

and then, at approximately 20.30 hours they required the applicants to

get out of the car which was then searched inside. The applicants were

required to wait at the roadside for 20 minutes while this was going

on and they were then asked questions about a street map which was in

the car. 10 minutes later the soldiers asked the applicants if they

would submit to a personal search, which they refused. The police were

called.

When the police arrived the applicants were told that they had

to accompany the soldiers to the Maze Prison to be searched, together

with the car. Section 21 of the Prevention of Terrorism (Temporary

Provisions) Act 1989 authorises the police to require the occupants of

a suspected car to accompany it to a designated place and wait while

the vehicle undergoes a thorough search. The applicants were not

allowed to travel together in the car. The first applicant was taken

to the Maze in a Landrover and the second applicant was taken as a

passenger in the suspected vehicle driven by a policeman, with two

soldiers in the back. They arrived at the Maze around 21.30 hours and

were taken to a custom-built search area. The search of the car was

apparently made by the army.

The first applicant was taken to a hangar and further questioned

by soldiers. He was subjected to a body search and required to remove

his jacket and empty his pockets. He was then required to wait in a

portakabin before being released at approximately 23.25 hours.

No details were given about what happened to the second

applicant.

On 26 February 1992 the applicants issued separate writs against

the police and the Ministry of Defence, claiming damages for "personal

injuries, injury to reputation, loss of liberty, mental anxiety and

distress, physical discomfort and inconvenience, loss and damage

sustained by reason of the negligence, assault, battery, false

imprisonment, breach of duty, trespass to the person and trespass to

goods". These proceedings are still pending.

COMPLAINTS

The first applicant complained of a violation of his rights under

Article 5 paras. 1, 2 and 3 of the Convention, as well as a violation

of Article 13 of the Convention.

Apparently the second applicant associated herself with these

complaints.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 November 1990 and registered

on 24 April 1991.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

13 May 1992. It decided, pursuant to Rule 48 para. 2 (b) of the Rules

of Procedure, to give notice of the application to the respondent

Government, without requesting the parties' observations at that stage

pending the outcome of Application No. 17711/91, Kelly v. the United

Kingdom.

On 4 September 1992 the Commission declared the Kelly case

inadmissible for non-exhaustion of domestic remedies, in accordance

with Articles 26 and 27 para. 3 of the Convention. This decision was

transmitted to the parties in the present case on 8 December 1992 and

the applicants were requested to submit their comments on their case

in the light of the decision and to state whether they wished to

maintain their application. The applicants did not reply to the

invitation.

By letter of 15 December 1992 the Government informed the

Commission that the applicants were in the process of suing the police

and the Ministry of Defence in relation to the facts of their case,

which gave rise to their complaints before the Commission. The

Government also made certain observations as to the admissibility of

the application. The applicants submitted no response to the

Government's letter.

THE LAW

The applicants complained that various aspects of their right to

liberty and security of person, ensured by Article 5 (Art. (art. 5) of

the Convention, were violated when the army and police detained them

for a few hours on 30 September 1990 while searching the car in which

they had been travelling.

The Government submitted that the applicants have not exhausted

domestic remedies before the domestic courts as is required by Article

26 (Art. 26) of the Convention. They contended that the treatment of

which the applicants complain before the Commission is the same as that

complained of before the domestic courts, where proceedings are still

pending.

The Commission refers to its decision in the case of Kelly v. the

United Kingdom, which presented similar facts and allegations to the

present application (No. 17711/91, Dec. 4.9.92, unpublished). In that

case the Commission held as follows:

"Article 26 (Art. 26) of the Convention precludes the Commission

from dealing with any case where domestic remedies have not been

exhausted ...

Part of the task of the Convention organs in an examination of

complaints under Article 5 (Art. 5) of the Convention is to

determine whether the measures complained of by the applicant

were lawful. This is a reference principally to the domestic

law. The Commission notes that in his claim before the domestic

courts the applicant is alleging that the restrictions on his

movements during the search of his brother's car were unlawful

under domestic law... The Commission cannot find it established

that the claim is devoid of any prospects of success. If the

applicant's claim were to succeed before the domestic courts, his

Convention complaints would be wholly or partly vindicated, which

would affect his status as a victim under Article 25 (Art. 25)

of the Convention.

The Commission cannot examine the present case as if section 21

of the Prevention of Terrorism (Temporary Provisions) Act 1989

authorised the treatment while the applicant is complaining about

the same treatment before the domestic courts. The very purpose

of Article 26 (Art. 26) of the Convention is to provide the High

Contracting Party with an opportunity to remedy complaints of a

breach of the Convention in form or in substance, if well-

founded. Accordingly it would be premature for the Commission

to deal with the applicant's case before the domestic courts have

determined his civil claims.

In the circumstances of the present case the Commission concludes

that the applicant has not yet exhausted the remedies available

to him under the law of Northern Ireland, in accordance with

Article 26 (Art. 26) of the Convention. It follows that the

application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention."

The Commission finds, in the absence of any submissions from the

applicants on this point, that the present application cannot be

distinguished from the Kelly case. The Commission concludes,

therefore, that the applicants have not yet exhausted domestic

remedies, as is required by Article 26 (Art. 26) of the Convention, and

that their application 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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BURNS AND TUMILSON v. THE UNITED KINGDOM

BURNS AND TUMILSON v. THE UNITED KINGDOM