Resolution ResDH(2006)56 concerning cases against the United Kingdom relating to aliens ' unlawful detention and lack of compensation and various violations of their right to a fair trial - Eusebio Santa Cruz Ruiz against the United Kingdom, Committee of Ministers decisions of 19 February 1999 and of 9 June 1999;

- Cuscani against the United Kingdom, judgment of 24 September 2002, final on 24 December 2002

(Adopted by the Committee of Ministers on 2 November 2006, at the 976th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 32 and of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms (referred to hereinafter as “the Convention”);

Having regard to the Committee ' s decisions adopted on 19 February 1999 (Interim Resolution DH(99)131) and on 9 June 1999 under former Article 32 in the case of Eusebio Santa Cruz Ruiz (a Spanish national) against the United Kingdom and to the judgment of the European Court of Human Rights in the case of Cuscani (an Italian national) against the United Kingdom, delivered on 24 September 2002, final on 24 December 2002, transmitted to the Committee for supervision of their execution under former Article 32 and under Article 46 of the Convention;

Recalling that these cases originated in applications lodged against the United Kingdom (see details in the Appendix);

Recalling that in the case of Santa Cruz Ruiz, the Commission declared admissible the complaints concerning firstly, the unlawfulness of his arrest and detention as well as the lack of compensation in this respect and, secondly, the unfairness of the proceeding in that he had not been informed of the nature and cause of the accusation against him and had not had adequate time and facilities to prepare his defence as legal aid was not available and he had not been legally represented before the Magistrates ' Court;

Recalling that in the case of Mr Cuscani, the Commission declared admissible the complaint of absence of interpretation at his sentencing hearing in 1996 before the Crown Court;

Recalling that the Committee of Ministers or the Court held

- that there had been, in the first case, violations of Article 5, paragraphs 1 and 5, of the Convention, as the applicant ' s detention was unlawful given that it was based on an ultra vires Magistrates ' Court order and that he had no right to compensation; violation of Article 6, paragraphs 1 and 3, of the Convention, on the grounds of the lack of sufficient information to the applicant on the charges against him and lack of adequate time and facilities for the preparation of his defence;

- that there had been, in the second case, a violation of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3(e), of the Convention;

- that the United Kingdom had to pay the applicants certain sums in just satisfaction (see details in Appendix);

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention, which Rules are applicable by decision of the Committee of Ministers to cases under former Article 32;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following the decisions of the Committee and the present judgment of the Court, having regard to the United Kingdom ' s obligation under former Article 32, paragraph 4, and Article 46 of the Convention to abide by them;

Recalling, in this context, that the obligation of all member states to abide by the Committee ' s decisions, under former Article 32 of the Convention, and by the judgments of the European Court in accordance with Article 46, paragraph 1, of the Convention involves an obligation to adopt rapidly individual measures in order to grant the applicants, to the extent possible, full redress for the violations found ( restitutio in integrum ), as well as to adopt without delay general measures, including, to the extent possible, interim measures, to stop ongoing violations of the Convention and to prevent the recurrence of violations similar to those found by the Court;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about individual measures and general measures taken preventing new violations of the same kind as those found by the Committee of Ministers and the European Court in the present cases; this information appears in the Appendix to this Resolution;

Having satisfied itself that the government of the respondent state had paid the a p plicants the sums awarded by the decision of the Committee of Ministers or by the Court ' s judgment (see Appendix);

Declares, after having taken note of the information supplied by the United Kingdom government, that it has exercised its functions under former Article 32 and Article 46 of the Convention in these cases.

Appendix to Resolution ResDH(2006)56

Information provided by the Government of the United Kingdom during the examination of the cases of Santa Cruz Ruiz and Cuscani

by the Committee of Ministers

I. P ayment of just satisfaction

Cases

Application

No.

Decisions/

Judgment

Just satisfaction

P ayment deadline

Date of payment

Default interest due

Santa Cruz Ruiz Eusebio

26109/95

19/02/1999 09/06/1999

£ 7,000 (global sum)

09/09/1999

19/10/1999

Waived by applicant

Cuscani Santo Annino Tommaso

32771/96

24/09/2002 final on 24/12/2002

Only costs and expenses: € 2,200

24/03/2003

01/05/2003

Waived by applicant

II. Individual measures

As regards the case of Santa Cruz Ruiz, the Government recalls that the applicant was arrested on 4 January 1994 and released on 7 January 1994 on payment of the arrears of maintenance in question. All consequences of the ensuing violations of the Convention have been covered by the just satisfaction provided by the Court.

As regards the case of Cuscani, the applicant, charged with offences of fraudulently evading VAT, after the impugned hearing of 26 January 1996 and his being sentenced, inter alia , to four years ' imprisonment, was released from prison on licence on 25 November 1996. The Government recalls that besides the just satisfaction, the applicant had his case examined in 1996 by the Criminal Case Review Commission (CCRC) which held that, whilst his conviction was arguably unsatisfactory, it could not be said to be unsafe. Since the CCRC did not consider that there was a real possibility that, if referred to the Court of Appeal, the conviction and sentence by the Crown Court would not be upheld, it decided not to make such reference. No further claim has been made by the applicant.

III. General measures

Violation of Article 5, paragraph 1: in the Santa Cruz Ruiz case, the government recalls that this violation was due to the fact that the Hove Magistrates ' Court when ordering the applicant ' s imprisonment in 1994 acted ultra vires because it mistakenly believed that the 1978 order by the Brighton County Court concerning enforcement of payment of maintenance arrears, had been registered and that the court had power to enforce it. Thus, it is evident that the violation was due to a judicial error which has not occurred again thereafter.

It is also to be noted that the Lord Chancellor ' s Department promptly sent a copy of the Commission ' s report to the above courts where the errors in question took place, as well as to the Justices ' Clerk Society.

Violation of Article 5, paragraph 5: in the same case, Section 7(1)(a), in conjunction with Section 9, of the Human Rights Act 1998 (HRA), in force since October 2000, makes it possible to bring proceedings in the domestic courts against a public authority, including courts and tribunals, which is alleged to have acted incompatibly with Article 5 of the Convention. As a consequence, a person who has been the victim of arrest or detention in contravention of the provisions of Article 5 of the Convention as a result of a judicial act now has an enforceable right to compensation as required by Article 5, paragraph 5, of the Convention.

In addition, following the dates of facts of the case, Sections 51 and 52 of the Justice of the P eace Act 1997 (which replaced Section 108 of the Courts and Legal Services Act 1990) entered into force. They provide, inter alia , that “an action shall lie against a justice of the peace or justice ' s clerk in respect of an act or omission of his in the purported execution of his duty to respect to a matter which is not within his jurisdiction if, but only if, it is proved that he acted in bad faith”.

Violations of Article 6 paragraph 1, in conjunction with paragraphs 3 and 3(e): in these cases, the government stresses that the HRA, implementing the Convention in domestic law, now ensures the considerations that the Commission and the Court found decisive in these cases will be duly taken into account by all competent judicial authorities. The absolute guarantee of a fair trial under Article 6 is now directly invoked and applied by the United Kingdom courts (see e.g. R v A (No.2), [2001] UKHL 251).

In this context, it is noted that the European Court ' s judgment in the case of Cuscani has been published in (2003) 36 European Human Rights Reports 1 and has been promptly sent out to competent criminal courts.

IV. Conclusion

The Government of the United Kingdom considers, in view of the measures taken, that the violations of the Convention found by the Committee of Ministers and the European Court in these cases have been fully remedied and that the United Kingdom has therefore complied with its obligations under former Article 32 and Article 46, paragraph 1, of the Convention.