Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17365/90

by J.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 December 1991 the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 4 August 1990 by

J.S. against the United Kingdom and registered on 26 October 1990 under

file No. 17365/90;

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 1934 and resident

in Gravesend. He is represented before the Commission by Mr. Brian

Spiro, a solicitor practising in London.

The facts of the case, as submitted by the applicant and which

may be deduced from documents lodged with the application, may be

summarised as follows.

In November 1982, the applicant, a director with Gallic Credit

Investment Ltd. was suspended from his employment. The affairs of the

company had become the subject of investigation by the German police

in 1981. In December 1982, the company went into voluntary liquidation

and the City of London police were called in to investigate its

affairs. The police sent two officers to Germany in September 1984 to

investigate the company's dealings with German companies. Neither

officer understood German.

The applicant was interviewed on 19 April 1985 by the London

police in respect of false invoices.

He was arrested on 24 October 1985 and interviewed. The

decision to prosecute was taken in February 1986.

The applicant was arrested again on 9 April 1986 and charged

with fraudulent trading, namely obtaining money by deception by

inducing banks to advance money to two German companies, which were

insolvent. The applicant was released on bail on 10 April 1986.

The committal proceedings (old-style) began on 13 October 1986

but were not completed until 4 May 1988, having taken 60 working days.

The applicant was tried with a co-defendant. The trial began on 3 May

1989 and lasted 65 working days. At the beginning of the trial, the

applicant's counsel applied to the court for the proceedings to be

discontinued on the ground that the delay involved constituted an abuse

of process. The judge rejected the application stating that the delay

was the result of the complexity of the subject-matter which involved

investigations in two countries and that there was no indication that

the applicant would be prejudiced, since the evidence depended largely

on documents rather than the recollection of witnesses. On 10 August

1989 he was convicted of two charges and sentenced to four years'

imprisonment on charge 4, with one year's imprisonment on charge 3. A

company director disqualification order of 10 years was imposed on him.

The applicant appealed against conviction and sentence.

Following a hearing on 26-27 February 1990, his sentence was reduced

to 21/2 years but his appeal against conviction dismissed. The applicant

had complained before the court of appeal, inter alia, that the

continuation of the proceedings was an abuse of process due to the

length of time - 61/2 years - between the collapse of the company and his

trial. On this point, the Court found the judge had correctly applied

the proper criteria in assessing whether the possibility of a fair

trial had been prejudiced by the delay. They therefore rejected this

ground of appeal. On the applicant's appeal against sentence, the

Court found as follows:

"Whilst we have taken the view that the learned judge was

right in allowing this case to proceed despite the long

lapse of time between the suspension of these two

applicants and the trial, some 61/2 years, we must

acknowledge that that length of time was not only extremely

lengthy in regard to the waiting for trial, but also

amounted to a very considerable punishment which has been

hanging over [the applicant] for that lengthy period.

Whilst the judge recognised that, we take the view that the

sentences which were passed did not sufficiently recognise

that those years had been years of anguish for the

[applicant] and of suspense, not knowing what the outcome

was going to be, and, so far as employment was concerned,

being at a distinct disadvantage.

Clearly, the scale of these frauds was such as to demand an

immediate sentence of imprisonment, but, in our judgment,

the balance would be properly struck if the sentences were

reduced in this way. So far as [the applicant] is

concerned, the sentence on count 4 should be reduced from

4 years to 30 months, the sentence on count 3 remaining

concurrent, making a sentence of 30 months in all. ..."

COMPLAINTS

The applicant complains under Article 3 of the Convention in

that he was held for three months in Wandsworth Prison where conditions

were squalid and inhuman.

He complains under Article 6 para. 1 of the Convention that he

did not receive a fair trial as a result of the delay which exceeded

a reasonable time. He complains under Article 6 para. 2 that he was

presumed guilty by the police. He also complains under Article 6 para.

3 that there was no solicitor present during his interview with the

police in October 1985.

The applicant invokes Article 7 para. 1 of the Convention

alleging that the maximum penalty for the offences was increased by

legislation to 7 years retrospectively. He complains also that his

phone was probably tapped and that police entered his home frightening

his children contrary to Article 8 of the Convention. He complains

that the judge interrupted him when he manifested his faith in the

court-room, invoking Article 9 of the Convention, and that he had no

effective remedy in respect of this complaint contrary to Article 13

of the Convention.

THE LAW

1. The applicant complains of the length of the proceedings

brought against him. He invokes Article 6 para. 1 (Art. 6-1) of the

Convention, which, in its first sentence, provides:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is

entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established

by law. "

According to the jurisprudence of the Commission and the Court,

a failure to observe the "reasonable time" requirement in Article 6

para. 1 (Art. 6-1) cannot, with regard to criminal proceedings, in

principle be remedied simply by mitigation of sentence. The Court has,

however, admitted that this general rule can be subject to exception

when the national authorities have acknowledged either expressly or in

substance the breach of the Conventon and afforded redress for it (Eur.

Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30,

para. 66; see also No. 10232/83, Dec. 16.12.83, D.R. 35 p. 213).

In the present case the Court of Appeal acknowledged in its

judgment of 27 February 1990 that the proceedings had been "extremely

lengthy" and that this amounted to a "very considerable punishment

hanging over [the applicant] for that lengthy period". The Commission

considers that by these formulations the Court of Appeal, in substance,

acknowledged a breach of Article 6 para. 1 (Art. 6-1). The Comission

further considers that in the circumstances of the present case the

reduction of sentence accorded on account of the length of the

proceedings is measurable, and cannot, as in the Eckle case, simply be

considered as an unverifiable declaration of good intent. The sole

reason given for reducing the sentence was the length of the

proceedings.

In these particular circumstances, the applicant can no longer

claim to be a victim of a violation of his right under Article 6 para.

1 (Art. 6-1) of the Convention to a hearing within a reasonable time,

and this complaint must, therefore, be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains that there was no solicitor

present during his interview with the police in October 1985. He

invokes Article 6 para. 3 (Art. 6-3) of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken". In the absence of any relevant decision, the period runs from

the date of the act complained of.

In the present case the act complained of occurred in October

1985, whereas the application was submitted to the Commission on 4

August 1990, that is, more than six months after the date of this act.

Furthermore, an examination of the case does not disclose the existence

of any special circumstances which might have interrupted or suspended

the running of that 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.

3.The applicant further complains that he was subjected to a

retroactive penalty in that he was imprisoned for a period of -

ultimately - 21/2 years in respect of offences stated to have been

committed between 23 June 1980 and 19 November 1982 although at the

time of commission, the maximum penalty was only two years. He alleges

a violation of Article 7 (Art. 7) of the Convention in this respect.

However, Section 80 of the Companies Act 1980, which increased

the maximum penalty for fraudulent trading to seven years' imprisonment

or a fine, entered into force on 23 June 1980. Accordingly, the

applicant was not subjected to a retroactive penalty, and this part of

the application is manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

4. The applicant also complains that he was presumed guilty by the

police, that his telephone may have been tapped, that the police

entered his home, that the judge did not respect his manifestations of

his religion and that he had no remedy in respect of that lack of

respect. He invokes Articles 6 para. 2, 8, 9 and 13

(Art. 6-2, 8, 9, 13) of the Convention.

The Commission has examined these complaints as they have been

submitted by the applicant. However, after considering the case as a

whole, the Commission finds that they do not disclose any appearance

of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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)

Menu

S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM

LEXI