FOURTH SECTION

DECISION

Application no . 52058/09 A.M. and Others against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 15 October 2013 as a Chamber composed of:

Ineta Ziemele, President, David Thór Björgvinsson, Päivi Hirvelä, Ledi Bianku, Vincent A. De Gaetano, Paul Mahoney, Faris Vehabović, judges, and Francoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 16 September 2009 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant s , A.M. ( a Ugandan national ) , H.M. ( a stateless person ) , and L.M. ( a Kenyan national ), were born in 1975, 1974 and 1971 respectively . The President of the Section acceded to the applicants ’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court ). The applicants are represented before the Court by Ms C. Ferguson of Liberty , a non-Governmental organisation based in London .

2 . The United Kingdom Government (“the Government”) a re represented by their Agent, Ms A. Sornarajah of the Foreign and Commonwealth Office.

A. The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The factual background

4 . The applicants were detained in Harmondsworth Immigration Removal Centre (“the centre”) during a disturbance which took place in November 2006.

5 . At the relevant time the centre was managed by Kalyx Ltd., a private company which had a contract with the Home Office. For many years it had been the cause of considerable and persistent concern. Following an inspection in 2002, Her Majesty ’ s Inspectorate of Prisons noted that it was not a safe or respectful environment and did not meet three out of four of the tests for a healthy custodial environment: safety, respect, purposeful occupation and preparation for release.

6 . At 9.25 p.m. on 28 November 2006 a disturbance broke out at the centre which lasted for some thirty-three hours. Immediately following the disturbance, detainees were interviewed by the police with a view to establishing who had been involved.

7 . On 1 February 2007 the Secretary of State for the Home Department commissioned Robert Whalley CB, a retired civil servant who had worked in the Home Office for most of his career, to investigate the circumstances surrounding the disturbance. Mr Whalley was not asked to investigate any specific incidents which took place during the disturbance and he did not speak with any of the detainees who were present at the material time.

2. Allegations of ill-treatment

8 . During the disturbance two detainees managed to call Bail for Immigration Detainees (“BID”), alleging that they had been ill-treated by riot police. BID immediately contacted the Detention Services Policy Unit of the Home Office Immigration and Nationality Directorate to notify them of the reports. BID was later contacted by officers from the Metropolitan Police, whom they also informed about the telephone calls. Moreover, in a letter dated 9 March 2007, BID wrote to Mr Whalley setting out the allegations that detainees were ill-treated during the disturbance and requesting an independent public investigation.

9 . In April 2007 Liberty obtained statements from a number of detainees, including the applicants, all of which supported the allegations made by the two detainees who had telephoned BID.

10 . In his statement, t he first applica nt stated that at 10 p.m. on 28 November 2006 detainees in his wing (C wing) were ordered outside into a cold exercise yard and were returned to the wing half an hour later. The first applicant was then locked in his cell, which was next to an association room. At 11.10 p.m., some detainees started a fire in the association room and the first applicant ’ s cell was filled with smoke. He collapsed due to smoke inhalation and awoke in a reception room. He had been given oxygen by a doctor, but had to lie on the cold floor. He remained in the reception room until 9 a.m. the following morning. During this time he was allowed to use the toilet but was not given food or water. He was also refused a change of clothes. At 5 p.m. he was transferred to another centre where he was given food and water on arrival.

11 . The second a pplicant had a cell in B wing. In his statement, h e alleged that at 7 p.m. on 28 November 2006 he was evacuated to the exercise yard, where he was kept for three hours. A struggle ensued as detainees tried to return to the accommodation block and during the struggle he was punched in the cheek by an officer and knocked to the ground. He was then locked in his cell with three other detainees. When a fire started upstairs, the cell began to fill with smoke but detention officers did not let the second applicant or the other detainees out of their cells. After about three hours, another detainee forced the door open. The floor outside was flooded and everything was broken. From that time onwards, which the second applicant estimated to be approximately 1 a.m. on 29 November 2006, until the morning of 30 November 2006, he was made to stay outside in the cold while the fi re continued to burn in B wing. During this time he drank water from a tap and ate some food from his possessions. He had no access to a toilet and had to urinate on the ground.

12 . The third applicant ’ s cell was in A wing. In his statement he claimed that at 1 a.m. on 29 November 2006 he went into the corridor to find that the detention officers had fled and water was everywhere. He retur ned to bed and awoke at 3 a.m.. A fire had set off the corridor sprinklers and stopped the air circulation in the air conditioning system. As a consequence it became very hot. At 8 a.m., while returning from the toilet, he saw a Rapid Response team so he returned to his cell and closed the door behind him. Once the door was closed it could only be opened by an officer with a master key. Later he banged on the door to be let out but he was told to “shut up”. During the time he was locked in the cell, the third applicant had to urinate on the floor. He also noticed water seeping into his cell from the corridor. Eventually, at around 5.45 a.m. on 30 November 2006, the door to his cell burst open and 10 – 15 riot police came in. When the third applicant jumped up, he was struck on the right knee and hip with a baton and pinned to the bed. He was taken to an exercise yard, where he was made to stand in the cold for five hours. He was then given a packet of biscuits, fruit and water before being transferred to another centre. However, the journey took nine to ten hours and he was given nothing further to eat or drink until he arrived at his destination.

13 . The applicants also complained of their treatment by detention officers prior to the disturbance. In particular, the second applicant, who suffered from a painful back problem, alleged that on one occasion he was “thrown” into a wheelchair and left in the clinic. He also described how detention officers tried to trip him up and called him a “fucking negro”. Moreover, the second applicant claimed that he had lodged six complaints against detention officers but had never received a response.

14 . On 21 May 2007 Liberty wrote to the Secretary of State for the Home Department, enclosing statements from the applicants and other detainees. They asked for an independent public inquiry into the causes of the disturbance and the treatment that the applicants had suffered at the hands of the detention officers.

15 . No reply was received and Liberty sent a further letter on 14 June 2007. On 2 July 2007 the Secretary of State replied to Liberty. In her letter she refused to initiate a public inquiry on the ground that Mr Whalley was already conducting an inquiry.

16 . On 5 March 2008 Liberty wrote again to the Secretary of State, this time asking for an undertaking that she would not remove detainees who had been present at the centre during the disturbance pending determination by the courts as to whether an investigation was required. In April 2008 the Secretary of State agreed to send a letter from Liberty to all such detainees and undertook not to remove any who contacted Liberty without giving Liberty seventy-two hours ’ notice.

3. The domestic proceedings

17 . On 16 July 2007 the applicants applied for judicial review of the Secretary of State for the Home Department ’ s refusal to initiate a public inquiry and of the failure of the Secretary of State and Kalyx to discharge their positive obligations under Articles 2, 3 and 8 of the Convention to take all reasonable steps to improve conditions at Harmondsworth to avert both the disturbance and the breach of the applicants ’ Article 3 rights before, during and after it. In addition, the applicants also claimed that there had been a breach of their Article 3 rights before, during and after the disturbance and that the Secretary of State had failed to prevent breaches of their rights under Articles 3 and 8 of the Convention by Kalyx.

18 . On 26 March 2008 the applicants were granted permission to apply for judicial review of the Secretary of State ’ s decision not to conduct a public inquiry. The application for permission on the remaining grounds was adjourned.

19 . I n a decision dated 16 June 2008 a High Court Judge hel d that if the applicants ’ allegations were true, they each had an arguable claim that their Article 3 rights were infringed in some or all of the following ways: being assaulted by detention officers or prison officers; being locked and kept locked in cells when smoke, the inflow of water and the need to urinate made continued occupation dangerous or potentially injurious to health; being kept outside in the cold for long periods; and not being provided with food or water for long periods. Moreover, the procedural obligation under Article 3 had not been met as the only investigation into the disturbance, which was carried out by Mr Whalley, did not consider the applicants ’ claims of ill-treatment. However, the judge concluded that the complaints had been communicated to the authorities too late, at a time when it would no longer have been practicable to hold an inquiry with a view to identifying and punishing those responsible.

20 . The High Court Judge therefore found that the Secretary of State had not been in breach of the obligation under Article 3 of the Convention to investigate the applicants ’ allegations of ill-treatment. The applicants were granted leave to appeal to the Court of Appeal against the dismissal of their claim. The Secretary of State also cross-appealed against the finding that the duty to investigate had not been fulfilled.

21 . In a judgment dated 17 March 2009 the majority of the Court of Appeal allowed the appeal and dismissed the cross appeal. They agreed with the High Court Judge that the issues raised by the applicants were such as to trigger the State ’ s obligation under Article 3 to investigate what was arguably inhuman and degrading treatment, but they did not agree that the applicants ’ allegations of ill-treatment had reached the Home Office too late to be given effect.

22 . The majority therefore identified the central issue in the appeal as whether the availability of tort proceedings, the possibility of a criminal inv estigation and the actuality of the Whalley inquiry and report, either singly or in combination, amounted to a fulfilment of the State ’ s obligation under Article 3 of the Convention.

23 . Although the majority accepted that two or more forms of intervention could be combined to satisfy Article 3, they did not accept that it could be done in the present case, where the police had shown little interest in prosecuting anyone other than the detainees responsible for the disturbance and Mr Whalley ’ s inquiry had a purpose which went wide of Article 3.

24 . Consequently, they made a declaration that the Secretary of State had failed to meet the United Kingdom ’ s obligation under Article 3 to institute an independent inquiry. However, on account of the time that had since passed and the “major resource implications”, they did not order that such an inquiry should take place. In conclusion, Lord Justice Elias noted that:

“In any event, I agree with Lord Justice Sedley that it is certainly now too late to carry out an effective investigation, and that the Court should not make any mandatory order to that effect. Nor do I think that there is any realistic prospect at this stage of police investigations leading to the identification of wrongdoers or any criminal charges. The appellants are pursuing their civil claims, and that is likely to be as good a means as any to establish whether there were breaches of Article 3 for which the State is liable, even if the particular transgressors cannot now be identified.”

25 . The applicants wrote to the Secretary of State on 15 April 2009 asking her whether she intended to abide by the finding that she had breached her investigatory obligation and initiate an independent investigation in order to remedy the breach. On 15 May 2009 she replied that she had carefully considered the Court of Appeal judgment and concluded that no such inquiry was required.

26 . On 16 July 2009 the applicants were refused permission to appeal to the (then) House of Lords.

27 . The applicants were subsequently granted permission to apply for judicial review in respect of their other grounds of claim, which included damages for breaches of their substantive rights under Articles 3 and 8 of the Convention (see paragraph 18 above ) . They also brought a further claim for damages in respect of the investigatory breach. In a decision dated 17 July 2009 the Court of Appeal held that the claim for damages in respect of the investigatory breach had to be made in the context of the civil claim in respect of the substantive breaches of Article 3. The claims were remitted to the Queen ’ s Be nch Division for determination.

COMPLAINTS

28 . The applicant s complained under Article 13 of the Convention that they were denied an effective remedy in respect of the violation of the procedural limb of Article 3. They further complained under Article 14 of the Convention that the State was in breach of its “additional duty” to investigate violent incidents motivated by racism. Moreover, they complained that the State had taken a less rigorous approach to investigating allegations of ill-treatment in Harmondsworth than it had shown in investigating allegations of ill-treatment in prisons.

29 . Finally, if the Court were to find that the delay in the proceedings was such as to prevent relief being afforded, the applicants complained under Article 6 § 1 of the Convention that that delay was unreasonable.

THE LAW

1. Alleged violation of Articles 3 and 13 of the Convention

30 . The applicants complained that failure of the State to conduct an investigation into the ir alleged ill-treatment was in breach of the procedural obligation under Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31 . In the alternative, the applicants submitted that the failure to conduct an investigation into their allegations of ill-treatment violated their rights under Article 13 read together with Article 3 of the Convention. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

32 . Following communication of the case, it came to the Court ’ s attention that after the applicants ’ civil claims were remitted to the Queen ’ s Bench Division they compromised their claims in the domestic proceedings against the Secretary of State and Kalyx by consent orders dated 18 March 2010.

33 . The applicants settled their claims for substantive breaches of Article 3 (as well as Articles 2 and 8) on confidential terms. In addition, each of the applicants accepted GBP 2,000.00 in full and final settlement of their claims against the Secretary of State for breach of the Article 3 investigatory obligation.

34 . In respect of the latter, the consent order read as follows:

“UPON the Court of Appeal (Sedley, Longmore and Elias LJJ) hearing the Claimants ’ appeal against the order of Mitting J of July 2008

AND UPON the Court of Appeal declaring by its order of 20 March 2009 (as amended on 15 April 2009 and as supplemented by the addition of paragraph 11 on 17 July 2009) that the First Defendant failed to meet the United Kingdom ’ s obligation under Article 3 of the European Convention on Human Rights to institute an independent investigation, to which the appellants would have full access and which would make its findings public when in May 2007 he was alerted to the possibility that the appellants may have been the subject of infringements of their Article 3 rights during the disturbance which took place at Harmondsworth Immigration Detention Centre on 28 – 29 November 2006 (hereinafter referred to as “the First Defendant ’ s breach of the Article 3 investigative obligation”)

AND UPON the issue of just satisfaction for the First Defendant ’ s breach of the Article 3 investigative obligation being remitted by the Court of Appeal to the Queen ’ s Bench Division for determination with the individual claims for damages

AND UPON the parties having agreed that these proceedings shall be compromised by consent orders, one completely open and one in Tomlin form

AND UPON the parties having agreed that this order be made immediately before the Tomlin order between them in this claim an unsealed copy whereof (excluding the Schedule) is attached to this consent order

AND UPON the Claimants and the First Defendant agreeing, subject to the approval of the Court, to conclude the issue of just satisfaction for the First Defendant ’ s breach of the Article 3 investigative obligation in the manner set out below

AND BY CONSENT

IT IS ORDERED THAT:

1. The First Defendant shall pay to Liberty on behalf of each of the Claimants within 14 days of the sealing of this order the sum of £2,000 (total £6,000 being 3 x £2,000) in full and final settlement of the Claimants ’ claims for just satisfaction for the First Defendant ’ s breach of the Article 3 investigative obligation.

2. The First Defendant shall pay to Liberty on behalf of all three Claimants within 14 days of the sealing of this order the sum of £2,500 (total £2,500) in full and final settlement of their costs in relation to the dispute over the quantum of the damages payable as just satisfaction for the First Defendant ’ s breach of the Article 3 investigative obligation. Save as provided in this paragraph there shall be no order for costs against the First Defendant.”

35 . The Government submitted that the application was inadmissible under Articles 34 and 35 of the Convention because the applicants were no longer victims of a violation of Article 3 and/or 13 of the Convention as the national authorities had expressly acknowledged the procedural breach by way of a declaration made by the Court of Appeal and afforded redress for it by way of an o ffer of compensation which was accepted by the applicants in full and final settlement of their claims for just satisfaction in respect of the breach of the Article 3 investigative obligation . The Government submitted that this redress was both appropriate and sufficient. While the payment of compensation for a substantive breach of Article 3 might not be sufficient to deprive an applicant of victim status in respect of a complaint about a procedural breach, in the present case the compensation was expressly intended to compensate the applicants for failure to institute an independent inquiry. Moreover, the amount awarded (EUR 2,000) was in reasonable proportion to what the Court would have been likely to have awarded under Article 41 and, more importantly, it was exactly the amount claimed by the applicants based on their consideration of recent Strasbourg jurisprudence ( Stefan Iliev v. Bulgaria , no. 53121/99, 10 May 2007 and Dzeladinov and Others v. “the former Yugoslav Republic of Macedonia” , no. 13252/02, 10 April 2008) .

36 . The applicants submitted that the investigatory obligation under Articles 3 and 13 existed without prejudice to any other remedy that might exist. Indeed, where an individual ha d an arguable claim that he or she ha d been tortured by agents of the State, the notion of an effective remedy entailed, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure ( Jasinskis v. Latvia , no. 45744/08, § 51, 21 December 2010).

37 . The Government submitted in reply that the applicants had failed to distinguish between compensation for a breach of the substantive obligation under Article 3 and compensation for a breach of the investigative obligation. In respect of the latter, an effective remedy could be either that an investigation take place or that compensation be paid. That would be consistent with the principle that where an effective investigation can no longer be held, and it was no longer reasonable to expect the State to carry out such an investigation, then payment of compensation would constitute an effective remedy for that breach.

38 . The Court recalls that an applicant ’ s status as a “victim” within the meaning of Article 34 of the Convention depends on whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006 ‑ V; and Cataldo v. Italy (dec.), no. 45656/99, 3 June 2004).

39 . Furthermore, as the applicants have submitted, where an individual has an arguable claim that he or she has been tortured by agents of the State, the notion of an effective remedy entail s , in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure ( Jasinskis v. Latvia , cited above, § 51 ).

40 . However, in the present case the applicants did not only accept compensation for the substantive breach of Article 3; they also accepted compensation “ in full and final settlement of [their] claims for just satisfaction for the First Defendant ’ s breach of the Article 3 investigative obligation ”. The sum of GBP 2,000.00 was the amount claimed by the applicants in respect of the breach of the investigative obligation and the award was accompanied by an express acknowledgement by the Court of Appeal that there had been a breach of the investigative obligation under Article 3 of the Convention. It was at all times open to the applicants to decline the offer of just satisfaction. Had they done so, they might not have obtained legal aid to pursue the civil claim for damages, but they could still have pursued their claim before this Court.

41 . The Court is therefore satisfied that the Court of Appeal in substance acknowledged that t he applicants ’ Convention rights had been infringed and provided appropriate redress . It therefore finds that in respect of their complaints under Articles 3 and 13 of the Convention, the applicants are no longer victims for the purpose of Article 34 of the Convention and that their claims must be rejected.

2 . Alleged violation of Article 14 read together with Article 3

42 . Finally, the applicant complained under Article 14 of the Convention that the State was in breach of its duty to investigate violent incidents motivated by racism and that the State had taken a less rigorous approach to investigating allegations of ill-treatment in Harmondsworth than it had shown in investigating allegations of ill-treatment in prisons.

43 . Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

44 . The Government submitted that the applicants had not sought any declaration or other relief from the domestic courts on the basis of Article 14 of the Convention. In fact, none of the grounds set out in their claim form relied upon or even referred to Article 14 and no relief was sought in respect of it. As such, the Government submitted that they had not exhausted domestic remedies in respect of this complaint.

45 . The applicants submitted that they had in fact drawn the attention of the Secretary of State and the domestic courts to the authorities that showed the individual obligation to investigate allegations of racism. Moreover, they had expressly referred to alleged incidents of racist abuse by officers in witness statements sent to the Secretary of State.

46 . The Court recalls that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see , inter alia , Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , 19 March 1991, § 34, Series A no. 200, Elçi and Others v. Turke y, nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003, and Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III).

47 . In the present case the complaint under Article 14 of the Convention was not raised in substance before the domestic courts. Accordingly , the Court finds the applicant s ’ complaint under Article 14 of the Convention to be inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

3 . Alleged violation of Article 6 § 1

48 . The applicants complained under Artic le 6 § 1 of the Convention that if the Court were to find that the delay in the proceedings was such as to prevent an investigation taking place into the alleged breach of Article 3 of the Convention , then that delay was unreasonable.

49 . Article 6 § 1 of the Convention provides as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

50 . In the present case the Court has not had cause to consider whether or not the delay in the proceedings was such as to prevent an investigation taking place into the alleged breach of Article 3. However, even if the delay had had such an effect, the applicant did not raise this complaint, in form or in substance, at any point before the domestic courts.

51 . Accordingly , the Court finds the applicant s ’ complaint under Article 6 § 1 of the Convention to be inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application i nadmissible .

Françoise Elens-Passos Ineta Ziemele Registrar President