AS TO THE ADMISSIBILITY OF
Application no. 34586/10
by Paul TUCKA (No. 1)
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 18 January 2011 as a Chamber composed of:
Lech Garlicki, President,
Vincent A. de Gaetano, judges,
and Lawrence Early, Registrar,
Having regard to the above application lodged on 9 June 2010,
Having deliberated, decides as follows:
1. The applicant, Mr Paul Tucka, is a British national who was born in 1964 and lives in Evesham.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 2006 the applicant was arrested and charged with gross indecency. He was subsequently also charged with rape. The charge of rape related to an incident alleged to have occurred while the complainant was between ten and eleven years of age. It was not reported to the police until she was 21 years old.
4. On 12 June 2007 the applicant was convicted of one count of rape and thirteen counts of gross indecency. He was sentenced to twenty years’ imprisonment, including fifteen years for the rape count.
5. The applicant appealed against conviction and sentence. On 29 September 2008 the Court of Appeal rejected his appeal against conviction. However, it reduced the sentence of imprisonment in respect of the rape count to ten years. His total sentence was therefore one of fifteen years’ imprisonment.
6. The applicant immediately applied to the Criminal Cases Review Commission (“CCRC” – see below) to have his case referred to the Court of Appeal. No copy of the application has been provided to the Court and the grounds for the request to the CCRC are unknown.
7. On 10 May 2010, the CCRC notified the applicant that it had decided not to refer his case to the Court of Appeal. The decision of the CCRC has not been provided to the Court, despite specific requests on 7 October 2010 and 10 November 2010.
B. Relevant domestic law
8. Section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”) sets out the power of the CCRC to refer a case to the Court of Appeal and provides:
“(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission—
(a) may at any time refer the conviction to the Court of Appeal, and
(b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction.”
9. Section 13 of the 1995 Act provides:
“1) A reference of a conviction, verdict, finding or sentence shall not be made under any of sections 9 to 12 unless—
(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,
(b) the Commission so consider—
(i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or
(ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and
(c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused.
(2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.”
10. The applicant complained under Article 6 § 1 of the Convention that he was denied a fair trial because there was clear evidence that he was not guilty and because the trial judge had given inadequate directions to the jury. He further alleged that his counsel had given him poor legal advice and had failed to act on his instructions at trial and to attend a pre-trial conference.
11. The Court must first determine whether the applicant has complied with the admissibility requirements in Article 35 § 1 of the Convention, which stipulates:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
12. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged; there is no obligation to have recourse to remedies which are inadequate or ineffective (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996-IV; and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010-...).
13. The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205; Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002; Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; and Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009).
14. In assessing whether an applicant has complied with Article 35 § 1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007; and Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009). Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009-...). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; and Sapeyan v. Armenia, no. 35738/03, § 21, 13 January 2009).
15. The Court recalls its extensive case-law to the effect that an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, e.g., Denisov, cited above; and Galstyan, cited above, § 39). Furthermore, remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v. Ukraine, no. 61406/00, § 60, 6 September 2005; and Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010-...). Similarly, remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Denisov, cited above; and Galstyan, cited above, § 39; and Williams, cited above). In particular, the Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months from the decisions rejecting their requests for reopening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; and Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000).
16. The Court notes that the present case concerns a request to the CCRC effectively seeking to reopen the concluded criminal proceedings against the applicant. The request was eventually refused by the CCRC. It is clear from the terms of the relevant legislation, and in particular from the terms of section 9 of the 1995 Act, that any decision to refer a case to the Court of Appeal is within the discretion of the CCRC. Section 9 of the 1995 Act also indicates that an application to the CCRC can be made “at any time”. Thus it can be seen that no time-limit applies to an application to the CCRC, nor to the number of CCRC applications an individual can make in respect of a conviction or sentence. Thus if an application to the CCRC were to be considered an effective remedy, the uncertainty thereby created would render nugatory the six-month rule in so far as it concerns criminal convictions in the United Kingdom.
17. The Court accordingly concludes that the applicant’s request to the CCRC for a referral to the Court of Appeal did not constitute an effective remedy for the purposes of Article 35 § 1 of the Convention. It therefore follows that the date of the final decision from which the six-month period began to run was 29 September 2008, the date on which his appeal against conviction and sentence was determined by the Court of Appeal. As the present application was lodged with this Court on 9 June 2010, it is therefore out of time and must be rejected pursuant to Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech
TUCKA v. THE UNITED KINGDOM (No. 1) DECISION
TUCKA v. THE UNITED KINGDOM (No. 1) DECISION