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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> K.H.C. v. THE UNITED KINGDOM - 3457/68 [1969] ECHR 9 (05 February 1969)
URL: http://www.bailii.org/eu/cases/ECHR/1969/3457_68.html
Cite as: [1969] ECHR 9
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K.H.C. v. THE UNITED KINGDOM - 3457/68 [1969] ECHR 9 (05 February 1969)
THE FACTS Whereas the facts presented by the applicant may be summarised as follows: The applicant is a British subject, born in 1909 and at present detained in Wormwood Scrubs Prison. He was convicted on 13th December, 1963, at the Central Criminal Court on eleven counts of fraud, forgery and perjury and sentenced to seven years' imprisonment. In a previous application (No. 2749/66) lodged with the Commission the applicant alleged inter alia that with regard to his conviction the authorities of the United Kingdom had denied him access to the courts for the purpose of re-opening his case. By three decisions of October and December, 1966 and July, 1967, the Commission rejected all the applicant's complaints as inadmissible. In particular his complaints that he had been refused both a pardon and a retrial were held to be incompatible with the provisions of the Convention. In July, 1967, the applicant brought an action for damages before the High Court of Justice, Queens Bench Division, against a certain D., who was living in Switzerland. D. was the principal Crown witness in the criminal proceedings against the applicant. In his statement of claims endorsed on the Writ of Summons taken out by the applicant on 25th July, 1967, it is alleged that D. owed him a duty as agent; that he failed to produce at the applicant's trial the material documents he had in his possession; and that this negligence lead to the applicant's conviction. The applicant therefore claimed damages. He also claimed a declaration that as a result of the defendant's (D.'s) action he was wrongfully imprisoned. On 8th December, 1967 the High Court of Justice gave a default judgment against the defendant ordering that he should pay to the plaintiff damages to be assessed. Consequently on the basis of the default judgment the applicant petitioned the Home Secretary for leave to make an application to the Divisional Court, Queens Bench Division, for an Order of Certiorari. The applicant states that on or about the 16th December, 1967, the Home Office refused him leave to move for such a prerogative order. Subsequently the applicant petitioned again to the Home Office for access to the Court in order to move for an Order of Mandamus. He states that on 22nd December, 1967, he received an answer to the effect that he would be punished by the prison governor if any proceedings whatsoever were taken by him or on his behalf. The applicant claims that the default judgment against D. proves that he was wrongly convicted. He complains that he is refused access to the Court to move for Mandamus and Certiorari against his wrongful imprisonment. He requests the Commission to declare that the United Kingdom authorities have violated Article 5, paragraph (4), and 6 of the Convention. THE LAW Whereas the applicant complains that, as a result of the default judgment, he has been denied the right to have the lawfulness of his detention determined under Article 5, paragraph (4) (Art. 5-4); Whereas, even if it would be assumed that the default judgment of itself proved that the applicant's conviction was wrongful, the purpose of Article 5, paragraph (4) (Art. 5-4) is to ensure judicial control of arrest and detention but cannot extend to detention which has itself been ordered by a competent court; whereas therefore, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention whereas it follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention; Whereas, in regard to the applicant's complaint that he was refused access to the Court to move for Orders of Certiorari and Mandamus, it is evident that the applicant was attempting, by applying for such Orders, to obtain a re-opening of the criminal proceedings concluded against him; whereas it is to be observed that the Convention, under the terms of Article 1 (Art. 1), guarantees only the right and freedoms set forth in Section I of the Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; Whereas otherwise its examination is outside the competence of the Commission ratione materiae; whereas the right to a retrial is not as such included among the rights and freedoms guaranteed by the Convention; and whereas, in accordance with the Commission's constant jurisprudence, proceedings concerning applications for retrial fall outside the scope of Article 6 (Art. 6) of the Convention (see applications Nos. 864/60, X. v. Austria - Collection of Decisions, Vol. 9, p. 17 and 1237/61, X. v. Austria - Yearbook V, p. 96); whereas, since the purpose of his applications for Orders for Certiorari and Mandamus was essentially to obtain a retrial, it follows that, even if such orders were appropriate means of achieving that purpose, the application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art; 27-2), thereof. Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE