AS TO THE ADMISSIBILITY OF

Application No. 12301/86

by Graham Gordon GILLARD and Patricia Ann GILLARD

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 July 1987, 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

                        G. BATLINER

                   Mrs.  G.H. THUNE

                   Sir  Basil HALL

                   MM.  F. MARTINEZ

                        C.L. ROZAKIS

                   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 17 April 1984

by Graham Gordon Gillard and Patricia Ann Gillard against the United

Kingdom and registered on 1 May 1986 under file No. 12301/86;

        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 first applicant is of British nationality born in 1943 and

currently serving a prison sentence in H.M. Prison Gartree.  The

second applicant, his wife, is of British nationality born in 1947 and

currently serving a prison sentence in H.M. Prison Styal.  The facts

as submitted by the applicants may be summarised as follows.

        The first applicant was arrested on 24 May 1982 in connection

with the killing of two people.  He was subsequently remanded in

custody on two charges of murder and two charges of conspiracy.  In

July 1982, the second applicant was also charged with two offences of

conspiracy to murder and two offences of conspiracy to pervert the

course of justice.  The applicants allege that the police could find

no evidence against them and accordingly entered into conspiracy with

other local criminals implicated in the incident to secure the applicants'

conviction.  They also allege that the police assisted the prosecution

witnesses to re-adjust their evidence to fit the prosecution's case and

that the police searched the first applicant's cell while he was absent.

        The applicants were committed for trial on 20 January 1983 and

the trial itself began in June 1983.  The first applicant had prepared

questions to put to the prosecution witnesses to expose the conspiracy

but his counsel refused to believe his allegations or to conduct the

defence in the manner he wished.  The applicants were found guilty on

28 July 1983, the first applicant being sentenced to life imprisonment

for murder and the second applicant to twelve years' imprisonment for

conspiracy to commit murder and to pervert the course of justice.

        The applicants appealed against conviction, on grounds inter

alia that the judge had failed to direct the jury correctly as to the

credibility of the evidence given by the prosecution witnesses and

that he had failed to remind the jury that there was no forensic

evidence to prove the first applicant was at the scene of the murder

or that one of the prosecution witnesses had failed to pick out the

first applicant at an identification parade.  The first applicant also

lodged additional grounds of appeal in which he stated that the

evidence had been fabricated by the police and that the trial judge,

who had been involved in the earlier trial of a defendant who had

accused the first applicant of being involved in various crimes, had

been biased against him.

        The applicants' applications for leave to appeal were refused

by a single judge of the Court of Appeal and their renewed application

dismissed by the full Court of Appeal on 29 March 1985.

        The applicants claimed from the outset that their conviction

and imprisonment were unlawful.  The applicants submitted an

application for habeas corpus to the Royal Courts of Justice but were

informed on 12 November 1986 that though the Court had considered

their application, it did not find it necessary to direct that the

applicants should be allowed to present their application in person or

that they should have the assistance of the Official Solicitor in

making a formal application.  The applicants were informed that an

application could still be made on their behalf by counsel.  However,

their applications for legal aid for this purpose had been refused on

9 October 1986 on the grounds that, inter alia, they had not shown

that they had reasonable grounds for taking these proceedings and that

their application would have no prospect of success.  Their appeal

against this decision was refused by letter dated 25 November 1986.

COMPLAINTS

        The applicants complain of being subjected to mental torture

contrary to Article 3 of the Convention as a result of their

conviction and imprisonment for offences which they claim they did not

commit.

        The applicants further complain that they are being detained

contrary to Article 5 paras. 1 and 4 of the Convention.  They also

complain that they have not received a fair trial within the meaning

of Article 6 para. 1 of the Convention and they also invoke Article 6

para. 2 of the Convention in connection with their trial and

conviction.

        They complain inter alia in this regard that the police

conspired to adjust the evidence to secure their conviction and that

the judge was biased, having already been involved in the trial of a

defendant who had accused the first applicant of criminal involvement.

The applicants also complain that an article on crime statistics on

the Police Gazette 1982, which was reproduced in a local newspaper,

prejudiced their trial, since it stated inter alia that in 1982 in all

cases of homicide the offender was detected within a few days.

        The applicants also complain that their family life has been

destroyed and that the prison authorities have censored their

correspondence to the police, and to the Commission.  They complain

that considerable amounts of their mail have gone missing and that

they have received no satisfactory explanation from the Post Office or

Home Office.  They invoke Article 8 of the Convention.

        The applicants also complain that they have been discriminated

against contrary to Article 14 of the Convention because they have

dared to challenge the abuses of the legal system.

THE LAW

1.      The applicants invoke Article 3 (Art. 3) of the Convention in respect

of their conviction and imprisonment for offences which they allege

that they did not commit.

        With regard to the judicial decisions of which the applicants

complain the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its constant

case-law (see e.g.  No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 p. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45) and finds no appearance of a violation

of Article 3 (Art. 3) of the Convention in the decisions complained of.

        It is true that the applicants also complain that they have

not received a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention which provides:

        "In the determination 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..."

        The question of whether a hearing conforms to the standards

laid down in Article 6 para. 1 (Art. 6-1) of the Convention must be

decided on the basis of an evaluation of the proceedings in their

entirety and not on the basis of an isolated consideration of any one

particular incident or aspect (see e.g.  Nielsen v.  Denmark,

Application No. 343/57, Dec. 2.9.59, Yearbook 4 p. 548; Application

No. 5574/72, Dec. 21.3.75, D.R. 3 p. 10; Application No. 7306/75, Dec.

6.10.76, D.R. 7 p. 115 and Application No. 8744/79, Dec. 2.3.83, D.R.

32 p. 141).

        The Commission has accordingly looked at the proceedings as a

whole on the basis of the applicants' submissions.  The Commission

however finds that an examination of the proceedings as a whole fails to

disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.  The Commission recalls in particular that the applicants were able

to submit their complaints, alleging that the judge was biased and misdirected

the jury, to the Court of Appeal, which however found their grounds of appeal

did not justify giving them leave to appeal.

        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.

2.      The applicants also complain of a violation of Article 6 para. 2

(Art. 6-2) of the Convention, which guarantees that everyone charged

with a criminal offence shall be presumed innocent until proved guilty

according to law.

        The Commission has examined the facts as submitted by the

applicants but finds that the applicants have failed to establish that

the principle of the presumption of innocence was not respected in

their case.

        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.

3.      The applicants also complain of a violation of Article 5

paras. 1 (a) and 4 (Art. 5-1-a, 5-4) of the Convention.  These provide:

        "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 ... ".

        "4.     Everyone who is deprived of his liberty by arrest or

        detention shall be entitled to take proceedings by which the

        lawfulness of his detention shall be decided speedily by a

        court and his release ordered if the detention is not lawful."

        The Commission has examined the facts as submitted by the

applicants but finds that the applicants have failed to establish that

they were not lawfully convicted by a competent court within the

meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.

        This finding does not however dispense the Commission from

proceeding to examine whether there has been a violation of paragraph

4, which is a separate provision.  The Commission recalls first of all

that where a decision depriving a person of liberty is made by a court

at the close of judicial proceedings, the supervision required by Article 5

para. 4 (Art. 5-4) is incorporated in the decision.  This is so, as in the

present case, where a sentence of imprisonment is pronounced after "conviction

by a competent court" (see e.g.  Eur.  Court H.R., De Wilde, Ooms and Versyp

judgment of 18 November 1970, Series A no. 11).  The Commission further recalls

that the applicants were also able to challenge the lawfulness of their

detention by submitting an application in writing for habeas corpus to the High

Court, which on a preliminary examination found no grounds to direct that the

applicants be allowed to appear in person to present their application or that

they should be given the assistance of the Official Solicitor.  In the light of

these circumstances, the Commission finds no appearance of a violation of

Article 5 para. 4 (Art. 5-4) of the Convention.

        The Commission accordingly finds no appearance of a violation

of Article 5 paras. 1 or 4 (Art. 5-1, 5-4) 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 applicants also complain of a violation of Article 8 (Art. 8) of

the Convention in that their family life has been destroyed by their

imprisonment.  They also complain that their mail has been subject to

censorship and that considerable amounts of their mail have gone

missing.

        Article 8 para. 1 (Art. 8-1) of the Convention provides that:

        "Everyone has the right to respect for his private

        and family life, his home and his correspondence."

        Insofar as the applicants complain of the disruption of the

family life, the Commission recalls that the separation of detained

persons from their families and the hardship resulting from it are

inevitable consequences of lawful imprisonment.  The Commission

accordingly finds no appearance of a violation of Article 8 (Art. 8) of the

Convention in this respect.

        Insofar as the applicants complain of censorship of their

mail, the Commission refers to its constant case-law in which it has

held that the opening and reading of letters by the prison is not

contrary to Article 8 (Art. 8) of the Convention (see e.g.  Application Nos.

2375, Dec. 7.2.67, Coll. 22 p. 45 and 4351/70, Dec. 5.10.70, Coll. 36

p. 83).

        The applicants also complain that considerable amounts of

their mail have gone missing.  The Commission recalls however that

Article 8 (Art. 8) of the Commission does not guarantee the perfect

functioning of the postal system and the applicants have failed to

establish that there has been any positive official interference with

the mail in question.

        It follows that these complaints are manifestly ill-founded

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

5.      The applicants also complain of discrimination contrary to

Article 14 (Art. 14) of the Convention.

        The Commission has examined the applicants' complaint as

submitted by them but finds that it falls to disclose any appearance

of a violation of Article 14 (Art. 14) of the Convention.

        It follows that this complaint is manifestly ill-founded

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

6.      The Commission finally notes the applicants' complaint that

their correspondence to the Commission has been opened by the prison

authorities but does not find on the facts of the present case any

indication that there has been a hindrance in the applicants'

effective exercise of their right to lodge a complaint before the

Commission contrary to the last sentence of Article 25 (Art. 25) of the

Convention.

        For these reasons, the Commission

        1.   DECLARES THE APPLICATION INADMISSIBLE;

        2.   DECIDES TO TAKE NO FURTHER ACTION IN RESPECT OF THE

             ALLEGED INTERFERENCE WITH THE EFFECTIVE EXERCISE OF THE

             RIGHT OF INDIVIDUAL PETITION.

        Secretary to the Commission        President of the Commission

              (H.C. KRÜGER)                      (C.A. NØRGAARD)