FOURTH SECTION
DECISION
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,
Nicolas Bratza,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
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:
THE FACTS
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.
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TUCKA v. THE UNITED KINGDOM (No. 1) DECISION
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
TUCKA v. THE UNITED KINGDOM (No. 1) DECISION
3
(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.”
COMPLAINTS
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.
THE LAW
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
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TUCKA v. THE UNITED KINGDOM (No. 1) DECISION
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
TUCKA v. THE UNITED KINGDOM (No. 1) DECISION
5
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
Registrar
Lech Garlicki
President