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AS TO THE ADMISSIBILITY OF

Application No. 13004/87

by Robert John WILSON and Others

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 20 June 1985

by Robert John WILSON and Others against the United Kingdom and

registered on 11 June 1987 under file No. 13004/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The 12 applicants are British citizens resident in Belfast

(see Appendix). They are represented by Mr. Monteith, a solicitor

practising in Portadown, County Armagh and by Mr. Joseph Rice, a

solicitor practising in Belfast. The facts as submitted by the

applicants may be summarised as follows.

All the applicants were arrested between May 1982 and November

1982. The ninth and eleventh applicants were released on bail, while

the others were remanded in custody.

The first, second and sixth applicants were subjected to a

different prison regime than the others, being transferred to A3, a

special security wing of H.M. Prison Belfast. While detained in A3

wing they were moved to different cells on a regular 7/10 basis and

subjected to continuous observation by prison staff. Save during

limited exercise periods, they were accompanied by a prison officer on

leaving their cell, including visits to the toilets. After the

lock-up at 7.00 p.m., the applicants were observed on a 15-30 minute

basis by an officer through the cell-view window. The observation

continued after lights out at 10.00 p.m. and the cell light was

usually put on, causing the applicants difficulty in sleeping.

These applicants were also subjected to more intensive

searches. They allege that they were searched up to four times per

day, with approximately eight strip searches per week. Though these

applicants were allowed normal prison visits, they were still kept

under close observation with the result that conversation could rarely

be private.

During his detention on remand at H.M. Prison, Belfast, the

first applicant began to attend education classes for English language

and French in A1 wing. However, after several weeks, these classes

were stopped. The first applicant was told that he could not leave A3

wing and that no teaching facilities could be provided in this area.

Though he was offered books to study English, the applicant refused

taking the view that they would be useless without the classes. After

24 December 1984 however, teaching facilities were made available.

A Preliminary Enquiry was held at Belfast Magistrates Court in

December 1982 and all the applicants were committed for trial in

Belfast Crown Court. The applicants were charged with "Scheduled

Offences" under the Northern Ireland (Emergency Provisions) Act 1978.

By section 7 (1) of this Act, trial of such offences was to be

conducted by a court without a jury.

The trial took place from 16 February to 18 March 1983 before

Mr. Justice Murray. The prosecution case rested largely on the

evidence of an accomplice or "supergrass" who had been given immunity

from prosecution. The applicants were represented by their solicitors

and senior and junior counsel.

The trial judge gave his written judgment on 11 April 1983 and

convicted all the applicants. The applicants were sentenced to terms

of imprisonment.

The applicants appealed. Following a hearing in September

1984, the Court of Appeal in its judgment of 24 December 1984 quashed

all the convictions and acquitted them of all the charges against them.

The first applicant however was again remanded in custody

following a further charge on the word of another informer. He

obtained bail from the High Court on 15 February 1985 and soon

afterwards the informer withdrew his statements and the charges were

dropped.

The third applicant was also remanded in custody again from

24 December 1984 on the word of an informer. He was acquitted however

on 22 February 1985.

COMPLAINTS

1. The applicants complain that they were deprived of their

liberty contrary to Article 5 para. 1 of the Convention. They submit

that there was no lawful detention after conviction by a competent

court. They submit that Mr. Justice Murray was a chancery judge

inexperienced in criminal law and that he has been found by the Court

of Appeal to have repeatedly erred in cases which he has tried. They

also invoke Article 5 para. 5 in relation to their detention.

2. The applicants also complain that because of Mr. Justice

Murray's incompetence they did not receive a fair hearing contrary to

Article 6 para. 1 of the Convention. They also allege that the

evidence against them was provided almost entirely by an accomplice

Joseph Charles Bennett, who had been given immunity from prosecution

by the Crown and this also deprived them of a fair hearing.

They further submit that since the applicants were unable to

give immunity to witnesses for the defence in case they incriminated

themselves they were unable to secure the attendance and examination

of witnesses on an equal footing. They invoke Article 6 para. 3 (d)

in this respect.

3. The first, second, third and sixth applicants also complain of

a violation of Article 3 of the Convention in relation to their

conditions of detention on remand. These conditions caused a

deterioration in health, in particular of the first applicant who

still suffers from a bowel disorder. They also complain of a

violation of Article 14 in that they were treated more harshly than

other remand prisoners.

4. The first applicant also complains of a breach of Article 10

of the Convention in that he was refused educational facilities.

THE LAW

1. The applicants allege that they were deprived of their liberty

contrary to Article 5 para. 1 (Art. 5-1) of the Convention, which provides:

"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;"

They submit that their detention falls outside the scope of

the exception set out in sub-para. 1 (a), the trial judge who

convicted them was so inexperienced and prone to error that he did not

constitute a "competent court" within the meaning of that provision.

The Commission first observes that the applicants' complaint

relates to their detention after the Crown Court's judgment of 11

April 1983. The term "competent court" in Article 5 para. 1 (a) (Art.

5-1-a) does not refer to the personal abilities of the judge or judges

that constitute it but to its legal authority and jurisdiction. There

is no indication that the court in the present case was not legally

constituted or that it was acting outside its jurisdiction. The

Commission finds that the applicants' detention after the judgment of

11 April 1983 was a "lawful detention ... after conviction by a

competent court" within the meaning of Article 5 para. 1 (a) (Art.

5-1-a). The Commission also refers to its previous case-law to the

effect that the setting aside of a conviction by an appeal court on

the basis of errors committed by the court of first instance does not

retroactively affect the lawfulness of the detention following that

conviction (see e.g. Krzycki v. the Federal Republic of Germany,

Comm. Rep. 9.3.78, D.R. 13 p. 57).

It follows that this complaint is manifestly ill-founded

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

2. The appplicants also invoke Article 5 para. 5 (Art. 5-5) of the

Convention, which provides that:

"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."

This provision is only applicable where there is a violation

of Article 5 paras. 1 to 4 (Art. 5-1-3-4). The Commission has found

no appearance of a violation of these provisions in this case.

Accordingly, the Commission finds that the applicants have no right of

compensation under Article 5 para. 5 (Art. 5-5) of the Convention (see

e.g. No. 2950/77, Dec. 4.3.80, D.R. 19 p. 213).

It follows that this complaint is also manifestly ill-founded

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

3. The applicants also complain that they did not receive a fair

hearing contrary to Article 6 para. 1 (Art. 6-1) because of the

incompetence of the trial judge and of the evidence given against them

by an accomplice who had been granted immunity. They also complain of

a violation of Article 6 para. 3 (d) (Art. 6-3-d) since defence

witnesses could not invoke the same immunity in relation to their

testimony.

Article 6 para. 1 (Art. 6-1) 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."

Article 6 para. 3 (d) (Art. 6-3-d) provides:

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses

on his behalf under the same conditions as witnesses

against him ..."

The Commission recalls that the applicants were convicted on

11 April 1983 on the basis largely of the evidence of an accomplice,

who had been given immunity. The Court of Appeal however on 24

December 1984 quashed these convictions and acquitted the applicants

of all charges against them. In these circumstances the Commission is

of the opinion that any defects which may have existed at the time of

the applicants' trial must be considered to have been rectified by the

decision of the Court of Appeal (see e.g. No. 8083/77, Dec. 13.3.80,

D.R. 19 p. 223). Consequently, the applicants can no longer claim to

be victims of a violation of Article 6 of 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.

4. The first, second, third and sixth applicants also complain

of a violation of Article 3 (Art. 3) of the Convention in respect of the

conditions of their detention in remand. They also complain of

discrimination contrary to Article 14 (Art. 14) of the Convention in being

treated more harshly than other prisoners held on remand.

Article 3 (Art. 3) of the Convention provides:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

The case-law of the Commission and the Court establishes that

ill-treatment must attain a minimum level of severity to fall within

the scope of Article 3 (Art. 3) of the Convention (see e.g. Eur. Court H.R.,

Ireland v. the United Kingdom judgment of 18 January 1978, Series A

no. 25, p. 15, para. 162). The Commission has examined the

applicants' complaints concerning the conditions of their detention

but finds that, although the regime of detention subjected them to

more rigorous surveillance than other prisoners, it has not been

established that the applicants thereby suffered any treatment such as

to infringe Article 3 (Art. 3) of the Convention.

As regards the applicants' complaints under Article 14 (Art.

14), this provision protects from discrimination in the enjoyment of

rights and freedoms guaranteed under the Convention. The Commission

has found above that the applicants have failed to establish that

their conditions of detention infringed the requirements of Article 3

(Art. 3) of the Convention. The Commission considers that Article 3

(Art. 3) is an absolute right. If complaints attain the level of

severity prohibited by Article 3 (Art. 3) there is a violation: if

not, there is no violation and Article 3 (Art. 3) can have no

application. It does not therefore fall to be considered in

conjunction with Article 14 (Art. 14+3) of 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.

5. The first applicant also complains of a breach of Article 10

(Art. 10) of the Convention in that he was refused educational facilities.

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, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant has failed to show that he

petitioned the Secretary of State concerning this complaint and has,

therefore, not exhausted the remedies available to him under the

United Kingdom law. Moreover, an examination of the case does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this complaint

must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

APPENDIX

1. Robert John Wilson (aged 43)

2. Robert Hugh Seymour (aged 34)

3. John Graham (aged 43)

4. John Smith Douglas (aged 44)

5. James Irvine (aged 44)

6. Brian Thomas Halliday (aged 27)

7. Garrett Nesbitt (aged 47)

8. Thomas Evans (aged 34)

9. Norman Houston (aged 57)

10. Samuel Austin (aged 45)

11. John Hewitt (aged 47)

12. Norman Large

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WILSON ; and OTHERS v. UNITED KINGDOM

WILSON ; and OTHERS v. UNITED KINGDOM

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