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THIRD
SECTION
PARTIAL DECISION
AS TO
THE ADMISSIBILITY OF
Application no. 28135/95
by Gerard MAGEE
against the
United Kingdom
The European Court of Human Rights (Third
Section) sitting on
14 September 1999 as a
Chamber composed of
Mr J.-P. Costa,
President
Sir Nicolas
Bratza,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja,
Judges,
with
Mrs
S. Dollé
,
Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 May 1992 by Gerard
Magee against the United Kingdom and registered on 4 August 1995 under file no.
28135/95;
Having regard to the reports provided for in Rule 49 of the Rules of
Court;
Having regard to the observations submitted by the respondent Government
on 28 October 1997 and the observations in reply submitted by the applicant on
31 January 1999;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen, born in
Northern Ireland
in 1964. He is currently
living in
Belfast
, having served a prison
sentence at the Maze Prison,
Northern Ireland
.
The applicant is represented before the Court by Ms Patricia Coyle, a
solicitor practising in
Belfast
with the firm Madden and
Finucane.
The facts, as submitted by the parties, may be summarised as follows.
A.
Particular circumstances of the case
On
16 December 1988
, early in the morning, the
applicant was arrested at his home under section 12 of the Prevention of
Terrorism Act 1984 (“the 1984 Act”) in connection with an attempted bomb attack
on military personnel. The applicant was taken to Castlereagh Police Office. He
claims that, on arrival, he immediately requested to see his solicitor. Access
was delayed pursuant to section 15 of the
Northern Ireland
(Emergency Provisions) Act
1987 (“the 1987 Act”). At
9.15 a.m.
the applicant was examined by
a doctor who advised him that if he had any complaints to make he should tell
the doctor when he made his round the following morning. The applicant was
cautioned pursuant to Article 3 of the Criminal Evidence (
Northern Ireland
) Order 1988 (“the 1988
Order”). Unfamiliar with this new law, the applicant again requested a
consultation with a lawyer and this request was refused.
On the same day the applicant was interviewed five times by two pairs of
detectives. These interviews took place between 10.55 a.m. and 1 p.m., 2 p.m.
and 4 p.m., 4 p.m. and 6 p.m., 7.35 p.m. and 9.30 p.m., and 9.30 p.m. and 12
midnight.
At
8.21 a.m.
on
17 December 1988
the applicant complained to
the same doctor he had seen the day before of ill-treatment during the second
and third interviews on the previous day. The doctor recorded in his notes that
the applicant had alleged that he had been repeatedly slapped and punched
occasionally in the back of the head during the 2nd and 3rd interviews and that
he had been punched a few times in the stomach. The doctor gave the applicant
two tablets (a mild analgesic) and prescribed four such tablets a day if
required. Pursuant to this complaint, at
9.15 a.m.
a police inspector visited the
applicant’s cell and took a note of the applicant’s complaints.
Subsequently, the applicant’s 6th, 7th and 8th interviews took place
between 9.30 a.m. and 1 p.m., 2 p.m. and 4.20 p.m., and 7.30 p.m. and 12
midnight. During the 6th interview the applicant broke his silence and gave
detailed answers to a number of questions admitting to his involvement in the
assembly and planting of the bomb. During the 7th interview the applicant signed
a lengthy statement which described in considerable detail his part in the
conspiracy to plant and detonate the bomb.
At
8.28 a.m.
on
18 December 1988
the applicant was visited by
the same doctor who asked the applicant if he had any further allegations of
ill-treatment and the applicant replied that he had not. The applicant was then
interviewed about another matter between
10 a.m.
and
12.45 p.m.
At
1 p.m.
the applicant was allowed to
consult with his solicitor, who made notes on the applicant’s allegations of
ill-treatment. The solicitor chose not to pass these complaints on to the
police. The applicant was then interviewed for the last time between
2 p.m.
and
5 p.m.
about an unrelated matter. The
applicant was medically examined that evening at
8.20 p.m.
by another doctor whose notes
indicated that the applicant had said “no allegations of ill-treatment since he
had been last seen by a doctor”. That doctor also noted that there was no sign
of injuries.
On
19 December 1988
the applicant was taken to
another police station where he was given a medical examination by another
doctor. That doctor’s note records the applicant’s detailed allegations of
assaults and ill-treatment which allegedly took place on 16 December 1988. No
objective evidence of injury was noted.
On 19 December 1988 the applicant, along with others, was charged at
Belfast Magistrates’ Court with conspiracy to cause explosions, possession of
explosives with intent, conspiracy to murder and membership of the Irish
Republican Army.
On 3 March 1989 the applicant, through his solicitor, made an official
written statement to the Complaints and Discipline Branch of the Royal Ulster
Constabulary complaining about his ill-treatment by one pair of detectives while
at Castlereagh Police Office.
On 17 September 1990 the trial of the applicant and his co-accused began
at Belfast Crown Court before a single judge sitting without a jury. The
applicant pleaded not guilty. The prosecution case was based on the admissions
made by the applicant in interview and, in particular, the written statements
signed by him.
On 3 October 1990, when the prosecution were about to lead evidence based
on the applicant’s admissions and statement made during questioning, the
applicant applied under section 8 of the Northern Ireland (Emergency Provisions)
Act 1978 (as amended) to have the admissions and statement made during
questioning excluded on the basis of the applicant’s alleged ill-treatment. A
voir dire began and the applicant
gave evidence as to his treatment, particularly by one pair of detectives during
interviews 2, 4 and 6 while in Castlereagh Police Office. Electrostatic Document
Analysis (“ESDA”) evidence was also led which the applicant submitted
demonstrated glaring defects in the authentication of the interview notes which
recorded his responses to the detectives’ questions. All the relevant witnesses,
including the applicant, the police officers alleged to have been involved in
the ill-treatment and the doctors who had seen the applicant, gave evidence. The
voir dire ended on 23 October 1990
when the trial judge rejected the application, admitted the applicant’s
admissions and statement into evidence and adjourned his detailed judgment in
these respects.
The applicant did not subsequently give evidence at the trial. However,
the trial judge cautioned the applicant pursuant to Article 4 of the 1988 Order
as regards adverse inferences which could be drawn from this failure to give
evidence.
On 21 December 1990 the trial judge gave judgment.
He first outlined his detailed reasoning behind his decision further to
the voir dire. He noted that the only
evidence against the applicant was the admissions and statement made while in
custody at Castlereagh Police Office and that there was no forensic evidence
against him. However, it was also noted that the applicant’s admissions and
statement were entirely consistent with the evidence presented in relation to
others charged (and later convicted) with offences arising out of the same
incident. The trial judge summarised the applicant’s evidence of ill-treatment
and this summary was later accepted on appeal by the applicant as constituting
an accurate account of his evidence in this respect.
The trial judge then commented on that evidence. He noted,
inter alia, that the applicant did
not mention the names of or attempt to describe the pair of detectives in
respect of whom he complained to the doctor on the morning of 17 December 1988;
that the applicant had not mentioned to the doctor on that morning the
“cigarette treatment”, which the applicant had submitted during the
voir dire was the treatment which
frightened him most; that there were inconsistencies in the accounts of
ill-treatment given by the applicant to the doctor on that morning and his
evidence at trial; that not one single objective sign of the ill-treatment which
the applicant alleged was found by any of the doctors who examined the
applicant; and that on the morning of the 18 December 1990 the applicant did not
make any complaint about ill-treatment despite the fact that he claimed he had
suffered the worst treatment of all during the previous day.
Although there had been a period when the monitoring screens (which
relayed pictures from cameras in the interview rooms to a central control room)
had not been monitored by the duty inspector on Saturday morning, the trial
judge found that this did not coincide with the applicant’s evidence as to when
he was ill-treated on that day and the trial judge found it impossible to accept
that ill-treatment of the nature alleged by the applicant could have gone on
without it being picked up by the cameras in the room where the applicant was
questioned. On the question of general credibility the judge found that the
applicant had repeatedly lied to the court, whereas the detectives involved were
not at all shaken by a rigorous cross-examination in their firm denials of the
allegations made by the applicant. As to the ESDA evidence, the trial judge
found that it did not substantiate the applicant’s submission as to the lack of
authenticity of the interview notes.
Accordingly, the trial judge rejected the applicant’s allegations of
ill-treatment and found that there was no reason to exclude the applicant’s
admissions or statement made during his detention in Castlereagh Police Office.
As to the probative value of the applicant’s statement, the trial judge found
that it was sufficiently detailed to establish the several charges against the
applicant and that he was fully entitled to convict the applicant on that basis.
On 11 January 1991 the applicant was sentenced to 20 years’ imprisonment.
On 8 February 1993 the applicant’s appeal against conviction, challenging
the trial judge’s conclusions as to the allegations of ill-treatment and as to
the ESDA evidence, was heard by the Court of Appeal of Northern Ireland. That
court noted that in such cases the question to be answered is whether the court
is satisfied that it is not a reasonable possibility that the accused was
ill-treated. It noted, inter alia,
that the trial judge had had the great advantage of seeing the applicant give
evidence, that both an accused and the police officers involved can equally have
an incentive to lie and that many facts are capable of being looked at in two or
more ways, but they must be considered sensibly and realistically. Having
reviewed the applicant’s evidence and the trial judge’s conclusions in that
respect, that court concluded that it was satisfied that the applicant had not
been ill-treated and that his conviction was neither unsafe nor unsatisfactory.
Accordingly, on 16 June 1993 the applicant’s appeal was rejected.
On 17 December 1993 the applicant’s appeal against his sentence was
rejected.
B.
Relevant domestic law
1. Provisions governing inferences which may be drawn from an accused’s
silence
Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provides
as relevant:
“Circumstances in which inferences may be drawn from accused’s failure to
mention particular facts when questioned, charged, etc.
“(1) Where, in any proceedings against a person for an
offence, evidence is given that the accused
(a) at any time before he was charged with the offence, on being
questioned by a constable trying to discover whether or by whom the offence has
been committed, failed to mention any fact relied on in his defence in those
proceedings; or
(b) on being charged with the offence or officially informed that he
might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time
the accused could reasonably have been expected to mention when so questioned,
charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies:
...
(c) the court or jury, in determining whether the accused is guilty of
the offence charged,
may
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable
of amounting to, corroboration of any evidence given against the accused in
relation to which the failure is material.”
Article 4 of the 1988 Order, relating to when an accused is called upon
to give evidence at trial, provides as relevant:
“(1) At the trial of any person (other than a child) for an
offence paragraphs (2) to (7) apply unless
(a) the accused’s guilt is not in issue, or
(b) it appears to the court that the physical or mental condition of the
accused makes it undesirable for him to be called upon to give evidence;
but paragraph (2) does not apply if, before any evidence is
called for the defence, the accused or counsel or a solicitor representing him
informs the court that the accused will give evidence.
(2) Before any evidence is called for the defence, the court
(a) shall tell the accused that he will be called upon by the court to
give evidence in his own defence, and
(b) shall tell him in ordinary language what the effect of this Article
will be if
(i) when so
called upon, he refuses to be sworn;
(ii) having been sworn, without
good cause he refuses to answer any question;
and thereupon the court shall call upon the accused to give
evidence.
(3) If the accused
(a) after being called upon by the court to give evidence in pursuance
of this Article, or after he or counsel or a solicitor representing him has
informed the court that he will give evidence, refuses to be sworn, or
(b) having been sworn, without good cause refuses to answer any
question, paragraph (4) applies.
(4) The court or jury, in determining whether the accused is
guilty of the offence charged, may
(a) draw such inferences from the refusal as appear proper;
(b) on the basis of such inferences, treat the refusal as, or as capable
of amounting to, corroboration of any evidence given against the accused in
relation to which the refusal is material.”
2.
Provisions governing access to a solicitor
The relevant provisions at the time of the applicant’s trial governing
the right of access to legal advice were contained in section 15 of the Northern
Ireland (Emergency Provisions) Act 1987, which provided as relevant:
“(1) A person who is detained under the terrorism provisions
and is being held in police custody shall be entitled, if he so requests, to
consult a solicitor privately.
(2) A person shall be informed of the right conferred on him
by subsection (1) as soon as practicable after he has become a person to whom
the subsection applies.
(3) A request made by a person under subsection (1), and the
time at which it is made, shall be recorded in writing unless it is made by him
while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted
to consult a solicitor as soon as practicable except to the extent that any
delay is permitted by the section.
....
(8) An officer may only authorise a delay in complying with
a request under subsection (1) where he has reasonable grounds for believing
that the exercise of the right conferred by that subsection at the time when the
detained person desires to exercise it – ...
(d) will lead to interference with the gathering of information about
the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult –
(i) to
prevent any act of terrorism, or
(ii) to secure the apprehension, prosecution or conviction of any person
in connection with the commission, preparation or instigation of an act of
terrorism...”
The delay had to be authorised by a police officer of at least the rank
of superintendent (section 15(5)(a)) and the detained person had to be told the
reason for the delay (section 15(9)(a)). The courts in Northern Ireland have
taken the view that the 1988 Order should not be read subject to section 15 of
the 1987 Act, since the 1988 Order had come into force after the 1987 Act, and
Parliament had not intended that an inference which was permitted by Article 3
of the 1988 Order could not be drawn because of the withholding of the right to
access to legal advice given by section 15 of the 1987 Act.
COMPLAINTS
The applicant complains under Article 3 of the Convention that he was
ill-treated while held in Castlereagh Police Office and, as a result, answered
questions and signed a statement confessing to his involvement in a terrorist
offence.
He also submits that such treatment is part of an administrative practice
which permits, condones and encourages brutality towards detainees in police
custody in Northern Ireland.
`
He further complains about the inadequacy of the legislation enabling the
prosecution of public officials responsible for torture, of the procedure for
investigating complaints of ill-treatment against the police in Northern Ireland
and of the system of monitoring the treatment of detainees in police stations.
He also argues that the conditions under which detainees are held in Castlereagh
Police Office amounted to a failure to protect his rights under Article 3 of the
Convention. The applicant invokes Article 3 alone or in conjunction with Article
13 in respect of these complaints.
The applicant also complains under Article 6 of the Convention that the
admission of evidence, obtained in contravention of Article 3 of the Convention,
contravened his right to a fair trial.
In addition, the applicant complains about the legislation in Northern
Ireland which allows inferences to be drawn from the failure of an accused to
give oral evidence in court. He further complains that he was required to give
evidence in the voir dire without
having had access to all medical and custody records in the possession of the
prosecution relating to his custody following his arrest and before he was
charged in court. Finally, the applicant complains about the lack of presence of
a lawyer while he was being questioned and about a denial of consultation with a
lawyer in a situation where incriminating inferences can be drawn from an
accused’s silence during questioning.
The applicant further complains under Article 14 in conjunction with:
(a)
Article 3 of the Convention that the treatment he received while detained
amounted to discrimination on grounds of national origin, association with a
national minority, religious views and/or political views (including the
applicant’s membership of Sinn Féin);
(b)
Article 6 of the Convention that the denial of access to a lawyer, when negative
inferences can be drawn from his silence during questioning and during his
interviews with the police, amounts to discrimination on grounds of national
origin and/or association with a national minority, since suspects arrested in
England or Wales under prevention of terrorism legislation may, on request, have
a lawyer present during interviews and do not have such adverse inferences drawn
against them.
PROCEDURE
The application was introduced on 22 May 1992 and registered on 4 August
1995.
On 30 June 1997 the European Commission of Human Rights decided to
communicate the application to the Government.
The Government’s written observations were submitted on 28 October 1997
after an extension of the time-limit fixed for that purpose. The applicant
replied on 30 January 1999, also after an extension of the time-limit.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to
the Convention, the case fell to be examined by the Court in accordance with the
provisions of that Protocol.
THE LAW
As to compliance with the six-month rule (Article 35 § 1
of the Convention)
1.
The Government requested the Court to verify the date of introduction of
the application from the standpoint of compliance with the six-month rule set
out in Article 35 § 1 of the Convention.
The Court notes that in a letter post-dated 22 May 1992 the applicant
notified the Commission of the substance of the complaints which form the
subject of his application. At that stage the applicant’s appeal had not yet
been heard by the Court of Appeal. The Court of Appeal dismissed the applicant’s
appeal against conviction on 16 June 1993 and his appeal against sentence was
rejected by the same court on 17 December 1993. The applicant subsequently wrote
to the Secretariat of the European Commission of Human Rights on 6 June 1994
explaining that he had exhausted domestic remedies. An application form was
forwarded to him on 4 July 1994. The form was completed and returned to the
Secretariat on 27 July 1995 following authorised extensions of the time-limit
for submission of the application. The application was registered on 4 August
1995.
In view of the above, the Court takes as the date of introduction of the
application the date of the applicant’s first communication to the Commission,
namely 22 May 1992. In that letter the applicant clearly indicated his intention
to lodge an application with the Commission and the nature of his complaint.
Even if the applicant did not renew his contact with the Secretariat of the
Commission until 6 June 1994, it is to be observed that during the intervening
period he was actively engaged in pursuing his appeals against conviction and
sentence. In these circumstances the Court does not have to pronounce on whether
the final decision in the applicant’s case for the purposes of the running of
the six-months rule in Article 35 § 1 of the Convention was constituted by the
Court of Appeal’s decision of
6 June 1993 or its later decision of 17 December 1993. For this reason the Court
considers that the applicant has lodged his application within the six-month
period prescribed by Article 35 § 1 of the Convention.
2.
The applicant complained under Article 3 of the Convention that he was
ill-treated while held in Castlereagh Police Office and, in consequence,
answered questions and signed a confession statement admitting to his
involvement in a terrorist bombing attempt. Article 3 of the Convention provides
as follows:
“No one shall be subjected to torture or to inhuman or degrading
treatment or punishment.”
The applicant submitted with reference to,
inter alia, a report dated 19
November 1994 of the European Committee for the Prevention of Torture and
Inhuman and Degrading Treatment or Punishment (“CPT”), and the conclusions and
recommendations of the United Nations Committee against Torture contained in its
report of 17 November 1995, that the detention regime in Castlereagh Police
Office is intended to be coercive in order to break the will of the detainee to
remain silent and contravenes international human rights norms. In his
submission, there is well-documented and independent evidence which points to
the fact that a deliberate strategy is pursued to refuse detainees access to
solicitors, in particular during interview, in order to build up psychological
pressure on them to make incriminating statements.
The applicant drew attention to the fact that he had been subjected to a
lengthy period of detention during which he had to endure prolonged questioning
by rotating teams of skilled interrogators in defiance of his clear indication
on the first day of his detention that he wished to exercise his right to
silence. Further, notwithstanding his complaint of ill-treatment to the police
doctor, he was subjected to another interrogation session between 9.30 a.m. and
1 p.m. on 17 December 1988 led by the same detectives who had ill-treated him.
Significantly, it was during the latter interview that he began to incriminate
himself.
The Government replied that the applicant’s allegations that he had been
ill-treated while in detention had been firmly rejected by the trial judge
following a detailed and comprehensive review of the evidence on the
voir dire. The judge was satisfied
beyond reasonable doubt that the allegations were unfounded and that the
applicant had lied in his testimony. Furthermore, the Court of Appeal carefully
reviewed the evidence and gave due consideration to the submissions advanced by
the applicant’s counsel. In all material respects, the Court of Appeal rejected
the applicant’s challenges to the trial judge’s findings.
The Court notes at the outset that the requirements of a police
investigation and the undeniable difficulties inherent in the fight against
crime, particularly with regard to terrorism, cannot result in limits being
placed on the protection to be afforded in respect of the physical integrity of
individuals. It recalls in this connection that Article 3 of the Convention
enshrines one of the fundamental values of the democratic societies and, as
such, it prohibits in absolute terms torture or inhuman or degrading treatment
or punishment. Article 3 admits of no exception to this fundamental value and no
derogation from it is permissible under Article 15 of the Convention even having
regard to the imperatives of a public emergency threatening the life of a nation
or to any suspicion, however well-founded, that a person may be involved in
terrorist or other criminal activities (see, for example, the Tomasi v. France
judgment of
27 August 1992, Series A, no. 241-A, p. 42, § 115, the Aydın v. Turkey judgment
of 25 September 1997, Reports of
Judgments and Decisions 1997-VI, p. 1891, § 81, and, most recently, the
Selmouni v. France judgment of 28 July 1999, to be published in
Reports 1999, § 88).
Against this background, the Court observes that the applicant has
requested it to deduce from the materials which he has supplied that he was
ill-treated during the period he spent in custody in Castlereagh Police Office.
He has not, however, drawn attention in his written submissions to the specific
examples of ill-treatment which he relied on before the Belfast Crown Court in
the voir dire proceedings and on
appeal before the Court of Appeal. No reference has been made in his application
to the alleged instances of physical and verbal violence and the threat of being
burned with a lighted cigarette, which featured prominently in his challenge to
the admissibility of his signed confession statement before the domestic courts.
The Court has carefully examined the materials on which the applicant
relies in support of his complaint under Article 3 of the Convention. However,
while noting the criticism which has been directed against the holding
conditions in Castlereagh Police Office by bodies such as the CPT, the British
Irish Rights Watch, the Independent Commissioner for the Holding Centres and the
United Nations Committee against Torture, the Court observes that its task in
the instant case is to determine whether the applicant has substantiated his
claim that he is a direct victim of a breach of Article 3 and, in particular,
whether the treatment to which he alleges he was subjected exceeded the minimum
level of severity required to bring it within the scope of that provision (see,
among many other authorities, the Ireland v. the United Kingdom judgment of 18
January 1978, Series A no. 25, p. 65, § 162 and the Aerts v. Belgium judgment of
30 July 1998, Reports 1998-V, p.
1966, § 64).
In this regard the Court must give due weight to the facts established by
the domestic courts in the light of the arguments and evidence adduced before
them. It notes in this connection that it is not normally within the province of
the Court to substitute its own assessment of the facts for that of domestic
courts and, as a general rule, it is for these courts to assess the evidence
before them (see, for example, the Klaas v. Germany judgment of 22 September
1993, Series A no. 269, pp. 17-18, § 30). The Court observes that the trial
judge had the benefit of seeing the applicant in the witness box and of
assessing at first hand his credibility and demeanour. The trial judge also
heard the evidence of the police officers whom the applicant alleged had
ill-treated him in detention, as well that of the doctor who had examined the
applicant. The applicant was legally represented and was able to probe the
testimony of the police officers with a view to exposing inconsistencies and
weaknesses in it. The trial judge evaluated the evidence from an objective, open
and cautious perspective, observing as he did that police officers also had an
incentive to conceal the truth of what occurred during an interrogation. The
trial judge in a carefully reasoned judgment found, at the conclusion of the
adversarial proceedings on the voir dire,
that the applicant’s allegations had been fabricated. The judge’s handling of
the evidence and his findings thereon were fully reviewed on appeal and the
Court of Appeal unhesitatingly upheld his conclusions.
In the Court’s opinion the applicant has not submitted any concrete
evidence which could call into question the findings of the domestic courts and
add weight to his allegations that he was the victim of treatment prohibited by
Article 3 of the Convention. On that account the Court considers that this
complaint is manifestly ill-founded and hence inadmissible within the meaning of
Article 35 §§ 3 and 4 of the Convention.
2.
The applicant further submitted with reference to Article 3 of the
Convention that ill-treatment of detainees is part of an administrative practice
in Northern Ireland and that there is no effective legislative framework in
Northern Ireland for prosecuting police officers guilty of ill-treatment or for
investigating complaints against them or for monitoring the treatment of
detainees in police stations.
The Court recalls that it has found the applicant’s earlier complaint
under Article 3 of the Convention inadmissible as being manifestly ill-founded.
It considers also that the applicant has not substantiated any of the broader
allegations which he now makes in the context of the same provision. For that
reason it rejects them as being manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and therefore inadmissible under Article 35 § 4
thereof.
3.
The applicant alleged that his rights under Article 6 of the Convention
had been breached in several respects. Article 6 provides as relevant:
“1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing within a reasonable time by an
independent and impartial tribunal established by law. ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the
following minimum rights:
…
(b) to have adequate time and facilities for the preparation
of his defence;
(c) to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so require; …”
(a)
As to the admissibility of the applicant’s complaint that he was
convicted in breach of Article 6 § 1 on the basis of evidence obtained in
violation of Article 3
The applicant contended that police officers who questioned
him at Castlereagh Police Office compelled him to sign a confession statement in
circumstances which gave rise to a breach of the guarantees afforded to suspects
under Article 3 of the Convention. The decision of the domestic courts to admit
that statement in evidence against him violated his right to a fair trial.
The Court recalls that it has found that the applicant’s allegation of
ill-treatment to be unsubstantiated. It refers in this respect to the reasons
supporting that conclusion. It concludes that, having regard to the safeguards
in place for assessing the merits of the allegation, the trial judge’s decision
to rule the confession statement admissible cannot be impugned from the
standpoint of Article 6 § 1 of the Convention.
The Court considers therefore that the applicant’s complaint is
manifestly ill-founded and therefore inadmissible under Article 35 §§ 3 and 4 of
the Convention.
(b)
As to the admissibility of the applicant’s complaints under Article 6 § 1
taken in conjunction with Article 6 § 3(c)
The applicant complained that under the 1988 Order, adverse inferences
may be drawn from an accused’s failure to give oral evidence in court or to
respond to police questioning during detention. In the latter context an accused
is not entitled to have a solicitor present during interview notwithstanding the
inherent compulsion in the Order to incriminate oneself.
The applicant asserted that he had been compelled to incriminate himself
before he had received any legal advice and that it was only after the police
had obtained his signed confession statement that he was allowed to consult with
his solicitor. The applicant argued that the Court’s John Murray v. the United
Kingdom judgment of 8 February 1996 (Reports
1996-I, p. 30) was authority for the proposition that he should have had
access to his solicitor at the initial stages of police interrogation. He
stressed that the disputed confession statement constituted the sole evidence
against him at his trial and the sole basis of his conviction, in contrast to
the applicant John Murray against whom there existed a formidable body of
evidence. In the applicant’s submission the only effective safeguards against a
forced confession would have been the presence of his solicitor during interview
and the tape recording of the interviews. The applicant drew attention to the
fact that these facilities were available to individuals in England who were
detained under the same legislation for the same offences. However, in his case,
he had not even been permitted to obtain legal advice before the interview
process commenced.
The Government, with reference to the above-mentioned John Murray
judgment, contended that the applicant, unlike Mr Murray, was not faced with the
choice between exercising his right to silence and mentioning facts which might
later be relied on in his defence at his trial. The Government highlighted the
fact that the applicant made a series of admissions during interview and did not
advance at his trial any facts which could have been, but were not, mentioned
when interviewed. Accordingly, it was not open to the applicant to claim that
under the effect of the Article 3 caution he was trapped in what the Court
described in its John Murray judgment as a “fundamental dilemma” which could
only be resolved on the basis of legal advice. In the Government’s submission
the real issue was whether the applicant, although denied access to a solicitor
until 1 p.m. on 18 December 1988, received a fair trial. In this regard the
Government reiterated their earlier contention that there had been a full,
lengthy and adversarial hearing on the
voir dire in order to determine whether the applicant’s admissions and
signed confession should be ruled inadmissible; that the trial judge had
expressly found on the evidence that the applicant had lied; and that the
applicant had been treated fairly and properly throughout the interview process
at Castlereagh Police Office.
The Government opined that, contrary to the applicant’s submission,
neither the presence of a solicitor at his interviews nor the tape recording of
the interviews would have provided a sure or even effective safeguard against
the kind of impropriety he alleged. In their view, such facilities would not
prevent an accused such as the applicant from fabricating allegations that he
had been ill-treated.
The Court considers, in the light of the parties’
submissions, that the above complaints raise complex issues of law and fact
under the Convention, the determination of which should depend on an examination
of the merits. The Court concludes, therefore, that the application is not
manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.
No other grounds for declaring it inadmissible have been established.
(c)
As to the admissibility of the applicant’s complaint under Article 6 § 1 in
conjunction with Article 6 § 3(b)
The applicant further complained that he was required to give evidence on
the voir dire without having had
access to all medical and custody records in the possession of the prosecution
relating to the period during which he was in custody prior to being charged. In
his submission this greatly handicapped his challenge to the voluntariness of
his confession statement in the voir dire
proceedings, especially since he had to give evidence first.
The Court notes that the applicant did not raise this complaint either at
first instance or on appeal, notwithstanding its relevance to his allegations of
ill-treatment during detention. It also notes that the applicant has supplied
copies of decisions of the Northern Ireland courts which, although in conflict,
nevertheless demonstrate that this issue is a proper one on which to seek a
determination. It must be concluded that the applicant has failed to exhaust
domestic remedies in respect of this particular complaint as required by Article
35 § 1 of the Convention. The complaint is accordingly inadmissible under
Article 35 § 4 of the Convention.
4.
The applicant further complained under Article 14 of the Convention in
conjunction with Article 6 that he was discriminated against on grounds of
national origin and/or association with a national minority. Article 14 of the
Convention provides in relevant part:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as ...
national ... origin, association with a national minority, ... or other status.”
The applicant submitted
that suspects arrested and detained in England and Wales under prevention of
terrorism legislation can have access to a lawyer immediately and entitlement to
his presence during interview. In addition, in England and Wales at the relevant
time incriminating inferences could not be drawn from an arrestee’s silence
during interview in contradistinction to the position under the 1988 Order in
Northern Ireland.
The Court considers, in the light of the parties’ submissions, that the
above complaint raises complex issues of law and fact under the Convention, the
determination of which should depend on an examination of the merits. The Court
concludes, therefore, that the application is not manifestly ill-founded, within
the meaning of Article 35 § 3 of the Convention. No other grounds for declaring
it inadmissible have been established.
5.
The applicant maintained that the procedures for investigating complaints
against the police in Northern Ireland, for monitoring the treatment of
detainees held in Castlereagh Police Office and for prosecuting officials
responsible for torture amounts to a denial of an effective remedy in breach of
Article 13 of the Convention read in conjunction with Article 3. Article 13
provides:
“Everyone whose rights and freedoms as set forth in this
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 it has declared the applicant’s complaints under
Article 3 inadmissible as being manifestly ill-founded. In these circumstances
it considers that the applicant cannot rely on an arguable claim of a violation
of Article 3 on which to base an allegation of a breach of Article 13, it being
noted that the latter provision only applies if an applicant can be said to have
an “arguable claim” of a violation of the Convention (see, for example, the
Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A
no. 131, p. 23, § 52).
It follows that this part of the application must be dismissed as being
manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the
Convention.
7.
The applicant maintained in addition that recourse by the security forces
to treatment prohibited by Article 3 of the Convention against detainees on
account of their national origin or association with a national minority
amounted to unlawful discrimination. In his submission, he was victim of
unlawful discrimination since the treatment to which he was subjected during
detention was as a result of his religion and political views. He invoked
Article 14 of the Convention in conjunction with Article 3.
The Court reiterates that it has found that the applicant’s allegation
that he was ill-treated during detention to be manifestly ill-founded and on
that account inadmissible. It also notes that the applicant’s assertions that he
was the victim of unlawful discrimination are in no way substantiated. The Court
considers that his complaint under this head is inadmissible as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court,
unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaints (i) that the fairness of his
trial was prejudiced since he was convicted on the basis of a confession
statement obtained in circumstances in which he was held for a prolonged period
in incommunicado detention and refused access to a solicitor (ii) that whereas
detainees in England and Wales suspected of involvement in terrorist offences
were guaranteed access to a solicitor and, at the relevant time, adverse
inferences could not be drawn from their silence, such rights did not extend to
similar detainees in Northern Ireland;
DECLARES INADMISSIBLE the remainder of the application.
S. Dollé
J.-P.Costa
Registrar President
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