WITHEY - United Kingdom  (Nº 59493/00)

Decision 26.8.2003  [Section IV]

On the basis of a statement given to the police by E., the applicant was arrested and remanded in custody on charges of indecent assault on children. E. subsequently decided that she would not give evidence against the applicant, as she feared reprisals. As a result, in January 1993 the trial judge ordered that the case not be proceeded with but that the charges be left to lie on the file, with the possibility of the case being resurrected in the event of any repetition of the alleged acts. The applicant unsuccessfully sought on several occasions to have the case reopened with a view to obtaining a formal verdict of “not guilty”. However, although the prosecution indicated in 1998 that it had no objection, the trial judge refused to reopen the case, considering that it had not proceeded solely as a result of acts of the applicant. The applicant complains in particular that there has been no determination of the criminal charges against him.

Inadmissible under Article 6(1):  There is no right under this provision to a formal conviction or acquittal following the laying of criminal charges. The issue in the present case was therefore whether the charges against the applicant were still pending and thus whether they had been determined within a “reasonable time”. In that respect, the prosecution would have had to apply to the court to resurrect the proceedings and a hearing would have been held at which the applicant could have made submissions as to why the charges should not be pursued. The court would have had to consider the fairness of reopening and whether an excessive period had passed. Moreover, it is only in exceptional circumstances that charges left to lie on the file are later pursued. On that basis, even if there was no undertaking by the prosecution not to pursue the charges later, the order leaving the charges on the file could be considered to have ended the criminal proceedings for the purposes of Article 6. The introduction of a complaint about the length of the proceedings in 2000 was therefore outside the six month time limit under Article 35(1) and the applicant’s unsuccessful applications to have the case reopened did not constitute effective remedies interrupting the six month period.