Lexploria

AS TO THE ADMISSIBILITY

Application No. 12279/86

by Richard CARLESS

against the United Kingdom

The European Commission of Human Rights sitting in private on

4 May 1987, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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 23 October 1985

by Richard CARLESS against the United Kingdom and registered on

17 July 1986 under file No. 12279/86;

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 applicant is a British citizen born in 1942 and resident

in Basildon. The facts as submitted by the applicant may be

summarised as follows.

The applicant is a London cab-driver. He is also a registered

asthmatic and bronchitis sufferer.

In or about January 1985, when the applicant was waiting for

fares at Heathrow airport, he was approached by a man smoking a large

pipe who wished to take a taxi. The applicant explained his health

condition and requested the man either to refrain from smoking while

in his cab or otherwise take the cab behind. The man said he would

take the next cab. A traffic warden noticed this incident however and

the applicant was charged with refusing to take a fare under section

9(5) of the Heathrow Airport Byelaws.

The applicant was tried before Uxbridge Magistrates' Court and

fined £20. He was supported in his defence by A.S.H., an anti-smoking

organisation, who were able to fund his appeal and provide him with

representation. He appeared before the Crown Court on 23 November

1985 and on his appeal being dismissed, the fine was increased to £110

plus costs. A.S.H. was unable to help the applicant further. He then

applied unsuccessfully for legal aid to take the case to the High

Court. His application was refused on appeal on 9 April 1986 on the

ground inter alia that he did not have a reasonable chance of success.

The applicant refused to pay the fine and on 15 July 1986 received a

sentence of seven days imprisonment which was confirmed on appeal.

The applicant served three days of his sentence in Pentonville and was

released on 18 July 1986.

While in prison, the applicant wanted to contact both the

European Commission of Human Rights and his elderly mother in order to

let her know where he was. He alleges that he made such a request

twice to the prison governor but was refused. There is however no

record of such request being made.

COMPLAINTS

The applicant complains of being refused legal aid to take his

case to High Court in violation of Article 6 para. 3 (c)and Articles

13 and 14 of the Convention. He considers his punishment was

excessive and totally unjust, in which respect he invokes Articles 3,

5 and 7 of the Convention. He also claims that he has been prevented

from following his convictions contrary to Article 2 of Protocol

No. 1.

The applicant also complains that while in prison the governor

refused to allow him to contact his elderly mother or the European

Commission on Human Rights contrary to Articles 8 and 10 of the

Convention. He also contends that he was prevented from attending

church or speaking to the other prisoners contrary to Articles 9 and

11 of the Convention. He further complains of having to share a cell

with a prisoner who smoked and of being subjected to an excessive

delay in receiving necessary medication.

The applicant also invokes Article 19 of the Convention and

Article 1 of the Fourth Protocol.

THE LAW

1. The applicant complains of being prevented from writing to the

Commission and to his mother when he was detained in Pentonville

Prison contrary to Article 8 (Art. 8) of the Convention.

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

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the prevention

of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others."

The Commission notes however that the applicant was in fact

detained in prison for only three days and that there is no record

that he made a request to write to the Commission or to his mother.

In these circumstances the Commission finds that the applicant has

failed to establish that there has been any real or effective

interference with his rights under Article 8 (Art. 8) 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.

The Commission has also given consideration to the applicant's

complaint concerning correspondence to the Commission in the context

of Article 25 para. 1 (Art. 25-1) in fine of the Convention which provides

that those High Contracting Parties who have made a declaration

recognising the Commission's competence to receive individual

petitions undertake not to hinder in any way the effective exercise of

this right. The Commission finds however that, in the circumstances

of the present case, in particular, the shortness of time involved in

the alleged restriction of the applicant's correspondence with the

Commission, there was no real hindrance to the applicant in the

presentation of his complaints before the Commission. The Commission

concludes therefore that it need take no further action in respect of

the alleged interference with the applicant's exercise of the right of

individual petition within the meaning of Article 25 (Art. 25) of the

Convention.

2. The applicant also complains of a breach of Articles 6 para. 3 (c), 13

and 14 (Art. 6-3-c, 13, 14) of the Convention in respect of the refusal of

legal aid to enable him to take his case to the High Court.

The Commission notes however that legal aid was refused on the

grounds inter alia that he had no reasonable prospect of success. The

Commission finds no indication from the application as it has been

submitted, that proper consideration was not given to the question

whether the interests of justice required that he should be granted

legal aid. In these circumstances the Commission finds no appearance of a

violation of Articles 6 para. 3 (c), 13 or 14 (Art. 6-3-c, 13, 14) 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.

3. The applicant also complains that his punishment was totally

unjust and excessive and that he has been prevented from following his

convictions. He invokes Articles 3, 5, 7 (Art. 3, 5, 7) of the Convention and

Article 2 of Protocol No. 1 (P1-2).

The applicant also complains of being prevented from attending

church or associating with other prisoners while in prison, of a delay

in receiving medication and of sharing a cell with someone who smoked.

He also invokes Article 19 (Art. 19) of the Convention and Article 1 of the

Fourth Protocol (P1-4).

The Commission notes first of all that the United Kingdom is

not a party to the Fourth Protocol and accordingly finds that the

complaint concerning Article 1 of the Fourth Protocol (P1-4) must be

dismissed as incompatible ratione personae with the provisions of the

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

Convention.

The Commission has examined the applicant's remaining

complaints as they have been submitted by him. However, after

considering the case as a whole, the Commission finds that the

applicant's complaints have not been substantiated and that the

petition does not generally 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 as a whole manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE and

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)

Menu

CARLESS v. THE UNITED KINGDOM

CARLESS v. THE UNITED KINGDOM