SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58374/00 by M.M. against the United Kingdom

The European Court of Human Rights (Second Section) , sitting on 8 January 2002 as a Chamber composed of

Mr J.-P. Costa , President , Sir Nicolas Bratza ,

Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 17 December 1999 and registered on 22 June 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a United Kingdom national, who was born in March 1987 and lives in Northern Ireland. He is represented before the Court by Ms T. Caul, a lawyer practising in Belfast. The applicant has requested anonymity and the Court has granted this request, under Rule 33 § 3 of the Rules of Court.

A. The circumstances of the case

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

On 20 June 1999 the applicant and his cousin were arrested on suspicion of car theft and damage and, at 5 p.m., taken to Antrim police station, where they were detained for questioning.

The custody record shows that the applicant was given a meal at 6 p.m. He spoke with two of his sisters on the telephone, but transport difficulties prevented any member of his family from attending. He was interviewed in the presence of a social worker and a solicitor, both of whom advised the police that they did not consider that the applicant should be detained overnight because he had threatened to harm himself. The responsible police officer, however, decided that unless an appropriate adult could be found to ensure that the applicant would appear in court the following day, it would not be possible to release him. No adult could be found to provide the required surety.

Shortly after midnight the applicant was charged with theft, taking and driving away a car and criminal damage. The police did not seek the applicant’s consent to take fingerprint and DNA samples, due to his “age and tearful condition”.

At 1 a.m. the applicant and his cousin were taken to Lisnevin Juvenile Justice Centre, which is situated in Millisle , County Down, some 45 miles (72 kilometres) from Antrim police station.

On arrival, at 2.30 a.m., the applicant was searched and told to undress and take a shower. He was given pyjamas to wear and placed in a small cell with no furnishings in the Scrabo Unit, used at Lisnevin Juvenile Justice centre for isolation and punishment. There was a plastic mattress on the floor, a blanket and a pillow. The floor was uncovered and there was one small window above head height. The applicant was frightened and did not know how long he would be held in the cell.

Later that morning, around 10.30 a.m., the applicant was taken to Magistrates’ Court, where he was released on bail.

B. Relevant materials

1. Domestic law provisions for the detention on remand of juveniles

Pursuant to Article 39 of the Police and Criminal Evidence (Northern Ireland) Order 1989, as amended by the Criminal Justice (Children) (Northern Ireland) Order 1998, the police are empowered to send a juvenile offender to a place of safety, which is defined as any juvenile justice centre, hospital, surgery or other suitable place. Articles 7 and 8 of the 1998 Order provide that children under 14 arrested without warrant for an offence other than homicide should be taken to a juvenile justice centre only on suspicion of committing a serious arrestable offence.

The Human Rights Act 1998 came into effect in Northern Ireland on 2 October 2000.

2. Official Reports concerning Lisnevin Juvenile Justice Centre

In 1999 the Social Services Inspectorate (“SSI”) inspected Lisnevin Juvenile Justice Centre as part of a programme covering all such institutions in Northern Ireland (“Report on the inspection of Lisnevin Juvenile Justice Centre 1999”). The SSI recommended, inter alia , the immediate suspension of the use of the Scrabo Unit.

In a report published in March 2000, the Criminal Justice Review Group, composed of four senior civil servants and five independent assessors, expressed the view that Lisnevin Juvenile Justice Centre was not suitable for holding juveniles, and recommended that it should close (“Review of the Criminal Justice System in Northern Ireland”, HMSO).

3. The United Nations Convention on the Rights of the Child 1989

This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe.

Article 3(1) of the UN Convention states:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authoritative, or legislative bodies, the best interest of the child shall be a primary consideration.”

Article 37 provides:

“States Parties shall ensure that:

(a)  No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ...

(b)  No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c)  Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest  not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

(d)  Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision of any such action.”

Article 40(1) provides:

“States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.”

4. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)

The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. Rule 13 provides, inter alia , that detention pending trial should be used as a measure of last resort for juveniles, and for the shortest possible period of time. Whenever possible, detention pending trial should be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.

COMPLAINTS

The applicant complains under Article 3 of the Convention that his detention at Lisnevin Juvenile Justice Centre amounted to inhuman and degrading treatment. In addition, he complains under Article 13 that there was no effective domestic remedy for his Article 3 complaint and, under Article 14, that he was discriminated against as a member of the traveller community. Under Article 6 § 1, he complains that the police decided to detain him overnight without holding a hearing before an independent and impartial tribunal.

THE LAW

1. The applicant submitted that the conditions of his detention gave rise to a violation of Article 3 of the Convention, which states:

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

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim ( T. v. the United Kingdom [GC], no. 24724/94, § 68, ECHR 1999).

Treatment has been held by the Court to be “inhuman” because, inter alia , it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (ibid., § 69).

The Court notes that the applicant was twelve at the time of his arrest and detention. It recalls that in the above-mentioned T. v. the United Kingdom judgment it held that the attribution of criminal responsibility to a child of ten did not, as such, give rise to a violation of Article 3 (ibid., § 72).

The Court does not consider that the decision to detain the applicant for one night pending his appearance before the magistrates was in itself incompatible with Article 3. In reaching this conclusion it observes that Article 5 § 1(c) of the Convention permits the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so, and makes no exception for juveniles. In addition, Article 5 § 1(d) allows for the lawful detention of a minor for the purpose of bringing him before the competent legal authority. Furthermore, neither the UN Convention nor the Beijing Rules forbid the detention on remand of a child, although both provide that arrest and detention (including, in the Beijing Rules, detention pending trial) should be used as a last resort only.

In the applicant’s case, it appears from the custody record that the police officer in charge considered that it was necessary to hold the applicant overnight to ensure that he attended court the following morning. The custody record states that the officer believed it would be possible to release the applicant if an appropriate adult could be found to stand surety for him. No suitable adult could be found, although it does not appear from the custody record that any particular effort was made to identify or contact any such person. It is, moreover, noteworthy that when transport difficulties prevented any member of the applicant’s family from attending at the police station, no consideration appears to have been given to the possibility of resolving this problem by making police transport available.

Instead, the applicant was detained overnight for approximately eight hours at Lisnevin Juvenile Justice Centre. For reasons which are not clear from the material before the Court, he was held in a cell in the Scrabo punishment unit. The cell was unfurnished except for a plastic mattress on the floor. The applicant was provided with a pillow and a blanket. Although at the police station the solicitor and social worker who attended him there expressed fears that he would harm himself if not released, the applicant has not alleged that he suffered any particular physical or mental injury as a result of his detention (cf. Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001), although he complains of being frightened and unsure as to how long he would be detained.

The Court views with concern the fact that a child of twelve was detained for eight hours in such a hostile and intimidating environment. Having considered the circumstances with care it does not, however, find that the treatment undergone by the applicant was sufficiently severe as to raise an issue under Article 3. In reaching this conclusion, it has had regard in particular to the fact that the applicant was detained for a relatively short period of time (cf. the Assenov v. Bulgaria judgment of 28 October 1998, § 136, where the Court found no violation of Article 3 in respect of a seventeen-year-old detained on remand for eleven months in poor conditions) and the fact that he does not allege to have suffered any particular damage to his physical or mental health as a result of his detention.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant claimed under Article 13 of the Convention that there was no domestic remedy available to him in respect of his complaints about his conditions of detention. Article 13 provides:

“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.”

The Court recalls that Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention ( Z. and Others v. the United Kingdom [GC], no. 29392/95, § 108, ECHR 2001, amongst many other authorities). In the light of its above finding that the applicant’s complaint under Article 3 is manifestly ill-founded, it cannot be said that this complaint was “arguable”, or that Article 13 therefore applies.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant also complained of discrimination contrary to Article 14, taken in conjunction with Article 3. Article 14 states:

“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.”

The applicant is a member of the traveller community in Northern Ireland. He has not, however, submitted any evidence to show that he was treated differently by the State authorities because of his ethnic status.

It follows that this part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

4. Finally, the applicant complains that the police remanded him in custody for one night without a hearing before an independent and impartial tribunal. He invokes Article 6 § 1 of the Convention in this connection, but the Court considers that Article 5 § 3 is the provision most relevant to this complaint.

Article 5 § 3 provides:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ...

The Court notes that the applicant was arrested at approximately 5 p.m., charged shortly after midnight, and taken before the Magistrates’ Court at approximately 10.30 a.m. It considers that his appearance before the magistrates was sufficiently prompt to satisfy the requirements of Article 5 § 3 of the Convention.

It follows that this part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President