THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40157/98 by Derek IVENS against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 3 April 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr P. Kūris , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 4 November 1997 and registered on 9 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicant is a   British national, born in 1938 and living in Leigh on Sea.

The circumstances of the case

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

The applicant was convicted on 21 December 1994 of conspiracy to deliver counterfeit notes, granted bail and sentenced on 20 January 1995 to thirty months’ imprisonment. During the trial it emerged that one of the jurors had been bribed. The judge discharged the juror and proceeded with the trial, saying that he was reluctant to order a retrial because it would delay the proceedings. According to English law this was not a factor which the judge should have considered in exercising his discretion.

The applicant applied for leave to appeal on 20 January 1995. His application was refused on 22 May 1995. He made an application to the full Court of Appeal for leave to appeal, which was refused on 7 June 1995. On 4 July 1995 he filed a renewed application for leave to appeal. There was a hearing of his application on 7 March 1996, when he was granted leave to appeal. On 24 April 1996, following a hearing, the Court of Appeal granted his appeal.

The applicant appealed to the Home Office for compensation for wrongful conviction and detention. By a letter dated 11 April 1997 he was informed that under English law there was no general entitlement to recompense for wrongful conviction and that the facts of his case did not entitle him to compensation under the statutory scheme (section 133 of the Criminal Justice Act 1988) or to an ex gratia payment.

The applicant applied for legal aid to challenge this decision and was refused. His appeal against the refusal of legal aid was dismissed on 17 September 1997, on the grounds that he had no reasonable propects of success in the proceedings.

RELEVANT DOMESTIC LAW

Compensation for wrongful conviction is payable under section 133 of the Criminal Justice Act 1988 if (1) the conviction is quashed on an out of time appeal; (2) the conviction is quashed after the case has been referred to the Court of Appeal by the Criminal Cases Review Commission; (3) a free pardon is granted. In each case, however, the applicant will be entitled to compensation only if new evidence has emerged, the earlier non-disclosure of which was not wholly or partially attributable to him or her.

In addition, the Home Secretary has power to make an ex gratia payment in certain exceptional cases where the applicant has spent time in custody, for example where there is a serious default by a public authority such as the police, or if an accused person is completely exonerated (whether at trial or on appeal).

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings. He refers in particular to the fact that by the time his appeal was heard he had served his full sentence of imprisonment.

THE LAW

The Government submitted that the applicant’s application to the Court was lodged out of time and that it did not, therefore, meet the admissibility criteria set out in Article 35 § 1 of the Convention, which states:

“1. The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

The Court notes that the application was introduced on 4 November 1997.

According to its constant case-law, the six months period referred to in Article 35 § 1 of the Convention commences on the day after the final decision in the last effective remedy available to the applicant in respect of his Convention complaint. Where an applicant has pursued a remedy that had no chance of success, it will not be an “effective” remedy for the purposes of Article 35.

The Court observes that, according to English law and practice, the applicant was not eligible for State compensation in respect of his conviction and imprisonment. The applications to the Home Office for compensation and to the Legal Aid Board for legal aid to contest the Home Office’s refusal cannot, therefore, be considered as “effective” remedies under Article 35. The six months period must, therefore, start to run from the date of the Court of Appeal’s judgment of 24 April 1996, which was the final decision in the proceedings for determination of the criminal charge against the applicant, the length of which proceedings forms the subject of his complaint under Article 6 § 1 of the Convention.

In conclusion, therefore, the application was not introduced within a period of six months from the date on which the final decision was taken.

It follows that the Court must reject the application as inadmissible pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President