AS TO THE ADMISSIBILITY OF
Application no. 55554/00
by Fateh RECHACHI and Hocine Ben ABDELHAFID
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 June 2003 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mrs V. Strážnická,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 2 July 1999,
Having regard to the observations submitted by the respondent Government and the submissions of the applicants,
Having deliberated, decides as follows:
The first applicant, Fateh Rechachi, is an Algerian national, born in 1962. The second applicant, Hocine Ben Abdelhafid, is a British national, born in 1964. Both live in London. They are represented before the Court by Birnberg Peirce and Partners, a firm of solicitors practising in London.
A. The circumstances of the applicants’ cases
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant, a paraplegic, is in a wheelchair. He has a pending asylum application in the United Kingdom. On the morning of 12 May 1998 the police arrested him pursuant to the Prevention of Terrorism (Temporary Provisions) Act 1989 (“PTA”). He was detained in the police station until 16 May 1998 when he was charged under sections 16A (possession of articles for suspected terrorist purposes) and 16B (collection of information likely to be useful for terrorist purposes) of the PTA and remanded in custody by the Magistrates’ Court. He was held in the prison medical wing. Numerous bail applications were refused until he was released on bail on 11 December 1998. He claims that he suffered ill-health during detention, that the facilities in the prison were not adapted for paraplegics and that he developed urinary infections because he was unable to maintain the personal hygiene necessary for the catheter which was in place.
The second applicant was also arrested on 12 May 1998 under the PTA. After detention in police custody, he too was charged with offences contrary to sections 16A and 16B of the PTA and remanded in custody by a Magistrates’ Court. He was released on 23 October 1998 when the charges against him were dropped.
On 24 May 1999 an article appeared in a legal journal (Criminal Law Week) suggesting that sections 16A and 16B of the PTA had lapsed on 22 March 1998. On 22 June 1999 the criminal proceedings against the first applicant were formally discontinued on the basis that the offences of which he had been charged were no longer part of English law.
On 23 June 1999 the Home Secretary made a statement to Parliament confirming that the offences in question had indeed lapsed from English law. He said that this had escaped the notice of the draftsman, Ministers (including himself), Parliament and the legal profession. The matter had come to light because of the relevant legal article published in May 1999 and, as soon as the article had been brought to his attention, he had taken legal advice. Once the status of the sections had been clarified, the police had been advised not to rely on them. Certain persons had been erroneously charged on the basis of those lapsed sections and certain steps had been taken to resolve those cases. He referred to the first applicant’s case (without naming him), noting that the indictment had been quashed.
The applicants applied for compensation for the time spent in detention under the ex gratia compensation scheme operated by the Home Office.
In a letter of 4 April 2002 the applicants’ representative informed the Court that the Home Secretary had made offers of interim ex gratia payments. The applicants had also made a claim for damages against the Commissioner for the Metropolitan Police for false imprisonment, assault and battery and malicious prosecution. The Commissioner had made a pre-issue offer and the applicants had made a counter-offer which was under consideration by the Commissioner.
The applicants were requested by the Court, by letter of 15 April 2002, to confirm whether they were considering a settlement or withdrawal of the application before the Court. No response was received.
By letter dated 28 May 2002 the Government noted that it was for the Home Secretary to determine eligibility for the ex gratia compensation scheme and he considered that the applicants qualified. The amounts to be awarded would be determined by an independent assessor. While the final awards had not yet been determined, each applicant had been offered an interim payment of 50,000 pounds sterling (GBP). The first applicant had not yet accepted this interim award whereas the second applicant had.
By letter of 16 April 2003 the Court requested the applicants to provide full information to the Court on the current position concerning ex gratia compensation and any civil proceedings.
By facsimile dated 23 April 2003 the applicants’ representative confirmed an interim ex gratia payment of GBP 50,000 to the first applicant by the Home Secretary and that his final award was being currently assessed. The Home Secretary had made a final ex gratia award of GBP 75,000 to the second applicant. No admission of liability had been made in either case.
The applicants’ representative further confirmed that the applicants had sent a “pre-action” letter to the Commissioner for the Metropolitan Police claiming false imprisonment, assault, battery and malicious prosecution. The threatened civil proceedings had not issued since the Commissioner had paid each applicant GBP 15,000 in settlement. As to the first applicant, the Commissioner acknowledged that he may well have been unable to prove the lawfulness of the arrest and that the detention following his being charged had been on the basis of lapsed legislation. He expressed regret for unlawfully arresting and detaining the first applicant. With respect to the second applicant, the Commissioner contended that he would have been able to prove the lawfulness of the arrest but acknowledged that the detention following his being charged had been on the basis of lapsed legislation and was therefore unlawful.
B. Relevant domestic law and practice
1. Prevention of Terrorism (Temporary Provisions) Act 1989 (“PTA”)
The PTA was first enacted in 1989. It is temporary legislation which lapses after 12 months unless renewed. The procedure for such renewal involves laying before Parliament a statutory instrument which is subject to affirmative resolution of both Houses of Parliament.
The PTA had 5 parts (I, II, II IV and V) and section 82 of the Criminal Justice and Public Order Act 1994 inserted a new part (IV.A) which included sections 16A and 16B. Between 1995 and 1997, Part IV.A was continued in force, together with the remaining provisions of the PTA, by statutory instruments coming into force on 22 March of each year.
The 1997 Order expired on 22 March 1998. On that date the Prevention of Terrorism (Temporary Provisions) Act 1989 (Partial Continuance) Order came into force. However, Parts II and IV.A had been omitted from that renewal Order and, therefore, lapsed on 22 March 1998.
2. Ex gratia compensation scheme
The Home Office operates a discretionary scheme which provides for the ex gratia payment of compensation, upon application, to people who have spent time in custody following a wrongful charge or conviction. The Home Secretary decides whether an individual qualifies for the scheme and an independent assessor calculates the level of ex gratia compensation required.
The applicants complain under Articles 5 §§ 1 and 5 and under Article 13 of the Convention that there was no lawful basis for their arrest or detention, since the relevant legislation had lapsed, and that they had no effective remedy in that respect.
The applicants complain under Article 5 §§ 1 and 5 that their arrest and detention did not have a lawful basis (because sections 16A and 16B of the PTA had lapsed at the relevant times) and that they did not have an enforceable right to compensation. They also invoke Article 13 claiming that they did not have an effective domestic remedy.
Article 5, in so far as relevant, provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) 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;
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
Article 13 provides, in so far as relevant, as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ... .”
The Government concede the admissibility of the applicants’ complaints under Article 5 §§ 1 and 5 of the Convention. Nevertheless, in light of the information received since the communication of the case concerning the ex gratia compensation awards and the settlement of civil proceedings which had been threatened by the applicants, the Court considers that the circumstances are such that it should examine whether the applicants can still claim to be victims of a violation of the Convention under the terms of Article 34 of the Convention (S.B.C. v. the United Kingdom, no. 39360/98. §§ 19 and 20, 19 June 2001, unreported).
The Court recalls that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66. For the application of this principle in the context of Article 6, see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238 at § 34 and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000, unreported). Accordingly, in principle, where domestic proceedings are settled and include an admission of the breach by the national authorities and the payment of a sum of money amounting to redress, the dual requirements established in Eckle are satisfied and the applicant can no longer claim to be a victim of a violation of the Convention.
As regards the requirement of redress, the Court notes that any such payments to individuals must constitute adequate redress for the actions or omissions of the national authorities which the individual alleges constitute a violation of the Convention (see, for example, Z.W. v. the United Kingdom (dec.), no. 34962/97, 27 November 2001, unreported). As to the requirement of acknowledgement by the authorities of the breach, the Court recalls that, in agreeing to settle court proceedings before a decision has been obtained, an individual renounces his or her right to have the issue of the liability of the national authorities determined by a court. When an individual accepts a sum of compensation in settlement of a civil claim and renounces further use of local remedies, he or she can no longer claim to be a victim of a violation of the Convention (Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I; Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V; and Hay v. the United Kingdom (dec.), no. 41894/98, ECHR 2000-XI. See also, more recently, Calvelli and Ciglio v. Italy, no. 32967/96, § 55, 17 January 2002, unreported).
In the instant case, the first applicant has received an interim payment by way of ex gratia compensation in the sum of GBP 50,000 and a sum of GBP 15,000 in settlement of the threatened civil proceedings against the police. Similarly, the second applicant has received an ex gratia final sum of GBP 75,000 together with GBP 15,000 in settlement of the threatened civil proceedings. While the first applicant’s ex gratia payment of GBP 50,000 is interim only in that a further payment to him is being assessed by the independent assessor, it is noted that the second applicant who was detained for a shorter period obtained GBP 25,000 over and above the sum already received by the first applicant. The Court considers these sums to be substantial and that they amount to adequate redress for the applicants’ claims that they were unlawfully arrested and detained for approximately seven months and five and a half months, respectively.
As to an acknowledgement of the alleged breach, it is true that the ex gratia compensation payments were not accompanied with an express or implied acceptance of the alleged wrongdoing. However, having settled the threatened civil proceedings, the Commissioner for the Metropolitan Police expressly acknowledged the unlawful detention of both applicants and, further, conceded that he may well have been unable to prove the lawfulness of the first applicant’s arrest. The Court would point out, in this respect, that the core of the applicants’ Convention complaints is the lack of a domestic legal basis for their being charged, arrested and detained.
It is true that the Commissioner did not accept that the second applicant had been arrested unlawfully. However, in any event, once the applicants agreed not to pursue the threatened civil proceedings in exchange for a sum of money, they both renounced their right to have the lawfulness of their arrest and detention determined by the domestic courts and failed to pursue local remedies which could have led to an acknowledgement of the alleged breach of the Convention (see, inter alia, the above-cited Caraher, Powell and Hay cases). The Court notes in this respect that it was the mere threat of proceedings which included allegations of false imprisonment which led to their settlement including the payment of equal sums to each applicant. Further, it is noted that the Home Secretary had already confirmed in Parliament in June 1999 that the relevant offences had lapsed, that certain persons had been erroneously charged on the basis of those lapsed sections and that the police had been advised not to further rely on those sections.
In these circumstances, the applicants may no longer claim to be victims of a violation of Article 5 § 1, nor consequently of a violation of Article 5 § 5 or 13 of the Convention, within the meaning of Article 34 of the Convention.
The application must therefore be rejected as manifestly ill-founded pursuant to Article 35 § 3 and 4 of the Convention (Caraher v. the United Kingdom, cited above).
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM DECISION
RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM DECISION