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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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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