Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17711/91

by Gerard KELLY

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 September 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 December

1990 by Gerard KELLY against the United Kingdom and registered

on 23 January 1991 under file No. 17711/91;

Having regard to:

- the reports provided for in Rule 47 of the Rules of

Procedure of the Commission;

- the written observations submitted by the respondent

Government on 30 October 1991 and the observations in reply

submitted by the applicant on 20 January 1992;

- the parties' oral submissions at the hearing on 4 September

1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1957 and resident

in Belfast.

He is represented before the Commission by Mr. Francis

Keenan, Solicitor, Belfast.

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

may be summarised as follows:

At 14.50 hours on 27 August 1990, two police officers of the

Royal Ulster Constabulary stopped a BMW motor vehicle,

registration no. LIB 1256, driven by the applicant's brother on

the Sprucefield Interchange of the M1 motorway. The applicant

and two other persons were passengers in the vehicle. The

Government stated that the reason the vehicle was initially

stopped was because it appeared to be overladen at the rear and

information provided by a support vehicle revealed that the

vehicle was believed to have been used in terrorist incidents.

The applicant denied that the car appeared overladen except in

so far as it was weighed down by the two male passengers in the

back seat. He also disputed that the vehicle was believed to

have been used in terrorist incidents or that such information

was provided by a support vehicle.

The Government further stated that the police officer who

stopped the car recognised two of the passengers, one of whom was

the applicant, from that officer's previous service in West

Belfast. (The officer in question was aware that the applicant

had previously been convicted of possessing explosives with

intent to endanger life and of possessing explosives in

suspicious circumstances for which he was sentenced to nine years

imprisonment on 11 March 1982. He was released on 18 October

1985.) Not being satisfied with the explanation given by the

occupants of the vehicle as to why it was overladen at the rear,

the police officers briefly searched the vehicle by the roadside

and then, with the assistance of a support vehicle, escorted it

to the Maze Prison for a more thorough examination. The

occupants of the car were informed that they were being required

to accompany their vehicle to the designated search area at the

Maze Prison in the exercise of powers under section 21 of the

Prevention of Terrorism (Temporary Provisions) Act 1989. The

escorted vehicle arrived at the Maze Prison at

15.20 hours and the vehicle and occupants were taken to the

designated search area by military personnel.

The applicant and the other occupants of the car were

required to remain at the Maze Prison during the search of the

vehicle. The applicant alleged that during this time he was

refused permission to go to the toilet. The Government denied

this. They stated that he was allowed to go to the toilet as

soon as his details had been recorded which was approximately two

to three minutes after he made his request. The applicant also

asked to see a solicitor. He was informed that he was not under

arrest, that his detention was merely a temporary precaution

while his vehicle was being searched and that he could contact

a solicitor on completion of the search which was being carried

out as expeditiously as possible.

The search of the vehicle terminated at 17.48 hours and the

applicant and the other occupants of the vehicle were then

informed that they were free to leave. They refused to do so and

made allegations that their vehicle had been damaged during the

search. The Government stated that no damage was caused to the

vehicle or to its contents during the search and neither the

applicant nor any of the

other occupants of the car made any claim for compensation for

damage as they were entitled to do under section 28 of the

Northern Ireland (Emergency Provisions) Act 1978. The applicant

and the other occupants of the car eventually left with the

vehicle at approximately 18.30 hours. The total length of time,

however, from when the vehicle was stopped at the roadside to

when the occupants were told that they were free to go was just

under three hours.

The Government said that although an electronic vapour

detector found positive evidence of traces of explosive type

substances inside the boot and passenger compartment of the

vehicle, these were not considered sufficient to justify any

charges being brought. The applicant disputed that any traces

of explosive substances were found. It was not suggested at the

time and no questions were asked about such substances.

On 11 September 1991 the applicant instituted civil

proceedings against the Ministry of Defence in the Belfast County

Court:

"the plaintiff's claim (is) for £5000 damages including

aggravated and exemplary damages for personal injuries,

physical discomfort and inconvenience, mental anxiety and

distress, deprivation of liberty, loss and damage caused by

reason of the assault, battery, false imprisonment,

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

defendants, their respective servants and agents and police

officers under their direction and control in and about the

conduct of soldiers and police officers and in and about

the arrest and detention of the plaintiff on or about 27

August 1990 at or near M1 motorway and the Maze Search

Centre."

A hearing in the case is not expected for several months

yet. The applicant is in receipt of legal aid for these

proceedings.

COMPLAINTS

The applicant complained that all the five paragraphs of

Article 5 of the Convention have been violated in his case.

The applicant alleged that Article 5 para. 1 of the

Convention was violated as he was deprived of his liberty in that

he was, in fact, arrested by police officers even though they did

not formally tell him that he was under arrest, and he was

thereafter detained against his will for the specified period.

The applicant maintained that the measures taken by the police

officers and soldiers were not justified under paragraph 1 of

Article 5 of the Convention. He alleged that Article 5 para. 2

of the Convention was violated in that he was not informed

properly, or at all, of the reasons for his arrest or of any

charge against him. He further alleged that Article 5 para. 3

of the Convention was violated in that he was not brought

promptly, or at all,

before a judge or other officer authorised by law to exercise

judicial power. The applicant complained that Article 5 para.

4 was breached as he was denied access to a solicitor and

consequently denied an opportunity to take proceedings whereby

the lawfulness of his detention could be decided speedily by a

court. Finally, the applicant complained that he suffered a

violation of Article 5 para. 5 of the Convention in that he did

not have any enforceable right to

compensation because the provisions of sections 15 and 20 of the

Northern Ireland (Emergency Provisions) Act 1978 and section 21

of the Prevention of Terrorism (Temporary Provisions) Act 1989

confer powers on soldiers and police to stop, detain and search

vehicles and their occupants and to require the occupants to go

to and remain at any place to where the vehicle is removed for

the purpose of a search.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 December 1990 and

registered on 23 January 1991.

After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on

2 July 1991. It decided, pursuant to Rule 48 para. 2 (b) of the

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

respondent Government and to invite the parties to submit their

written observations on admissibility and merits. The

Government's observations were submitted on 30 October 1991,

after a one week extension of the time limit fixed for this

purpose. The applicant replied on 20 January 1992, after a one

month extension of the time limit, legal aid having been granted

to the applicant by the Commission on 13 December 1991.

On 18 May 1992 the Commission decided to hold a hearing of

the application on the same day as a similar case of O'Neill v.

the United Kingdom, application No. 17441/90. The hearing was

held on 4 September 1992. The applicant, who attended, was

represented by Mr. B. Macdonald, BL, Counsel, Mr. F. Keenan and

Ms. C. Diamond, Solicitors, Messrs. Francis Keenan. The

Government were represented by their Agent, Mr. H. Llewellyn, Mr.

N. Bratza, QC, Counsel, Mr. R. Weatherup, Counsel, and three

advisers.

THE LAW

The applicant complained that various aspects of his right

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

of the Convention were violated, when the police and army

searched the car in which he was travelling on 27 August 1990.

He alleged, inter alia, that making him wait in the Maze prison

during the search of the vehicle, even though there was no formal

arrest, constituted an unjustifiable deprivation of his liberty

which did not fall within any of the categories of lawful

detention in Article 5 para. 1 (Art. 5-1).

The Government refuted the applicant's claims. They first

submitted that the applicant has not exhausted domestic remedies

as is required by Article 26 (Art. 26) of the Convention. The

treatment of which the applicant now complains before the

domestic courts is the same of which complaint has been made to

the Commission. Before the Belfast County Court the applicant

contends that, as a matter of domestic law, his treatment was

unlawful, arbitrary, oppressive and unconstitutional, and he

claims aggravated and exemplary damages. If the applicant is

successful in these claims he will cease to be a victim for the

purposes of the Convention. His domestic court claims cannot be

wholly without reasonable prospects of success otherwise he would

not have been granted legal aid. The substance of the wrong

alleged before the Commission could be remedied by the domestic

courts, if well-founded. It is therefore irrelevant that the

Convention does not form part of United Kingdom law.

The applicant contended that there is no domestic remedy

capable of providing redress for his complaints because section

21 of the Prevention of Terrorism (Temporary Provision) Act 1989

expressly authorises conduct in breach of the Convention. The

powers of the

domestic courts in a claim for damages are limited to deciding

whether there has been compliance with section 21, not whether

there has been a breach of the Convention, which does not form

part of domestic law. Each year there are hundreds of searches

of the kind in question, most of which prove fruitless, yet the

applicant believes that there has not been a single reported

decision in a Northern Ireland court in which such a search or

detention has been found unlawful. In any event, even if he

himself succeeds in his claim and is awarded damages, this would

still not constitute an effective remedy because the conduct of

which complaint is made is authorised by law and is an

administrative practice (Nos 5577-5583/72, Donnelly and six

others v. the United Kingdom, Dec. 15.12.75, D.R. 4 p. 4). The

applicant noted that the

Government had not raised the question of exhaustion of domestic

remedies until a week before the hearing in the case before the

Commission. He considered that they could not do so at such a

late stage. The Government's earlier silence was, in his view,

implicit acceptance that no effective domestic remedy was

available to him.

The Government also contended that, in any event, the

applicant had not been deprived of his liberty within the meaning

of Article 5 para. 1 (Art. 5-1) of the Convention, or, if he had,

the measures taken were "in accordance with a procedure

prescribed by law" and constituted "the lawful arrest or

detention of a person ... to secure the fulfilment of an

obligation prescribed by law", within the meaning of Article 5

para. 1 (b) (Art. 5-1-b) the Convention. That obligation was

created by section 21 of the Prevention of Terrorism (Temporary

Provisions) Act 1989, ie an obligation to assist and not obstruct

the search for munitions. Furthermore such measures were

justified under Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention, being lawful detention, in accordance with a

procedure prescribed by law, effected for the purpose of bringing

the applicant before the competent legal authority on reasonable

suspicion of having committed an offence.

The Commission must first examine whether the applicant has

exhausted domestic remedies in compliance with Article 26

(Art. 26) of the Convention.

The Commission notes that the applicant did not inform the

Commission of the developments in his case when he instituted

civil proceedings before the Belfast County Court against the

Ministry of Defence. Moreover these matters, inexplicably, did

not come to the attention of the Government until shortly before

the Commission's hearing in the present case when their objection

under Article 26 (Art. 26) of the Convention was raised for the

first time. However, Article 26 (Art. 26) of the Convention

precludes the Commission from dealing with any case where

domestic remedies have not been exhausted, and the Government

cannot be estopped from raising such a preliminary objection at

any time prior to the Commission's decision on the admissibility

of the case.

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 (p. 4 above statement of claim). 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.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KELLY v. THE UNITED KINGDOM

KELLY v. THE UNITED KINGDOM