AS TO THE ADMISSIBILITY OF
Application No. 14385/88
by Armen Rouben BAZIL
against the United Kingdom
The European Commission of Human Rights sitting in private on
10 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 September
1988 by Armen Rouben BAZIL against the United Kingdom and registered
on 17 November 1988 under file No. 14385/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Iranian citizen born in 1943 and resident
in Birmingham. He is currently serving a prison sentence in H.M.
Prison Dartmoor. The applicant is represented by Mr. Antony Burton,
a solicitor. The facts as submitted by the applicant may be
summarised as follows.
On 17 April 1985, the applicant returned from Pakistan to
London and was intercepted at Heathrow by customs officers in
possession of a false bottomed suitcase containing 2,48 kg of heroin.
The applicant maintained that his own suitcase had been borrowed by R
during his visit to Pakistan and that R had provided him with another
suitcase in which, unknown to the applicant, the heroin was secreted.
On or about 19 April 1985, the applicant was assigned Mr.
Booth of Messrs. Booth Bennett as solicitor under legal aid. This
solicitor was not chosen by the applicant. On 27 June 1985, the
applicant was committed for trial. He was first visited by Mr. Booth
on 29 August 1985, followed by visits on 18 September and 31 October.
On 1 December 1985, the applicant wrote to Mr. Booth asking for the
complete contents of his file. Mr. Booth did not comply with the
request or answer the letter.
On 14 December 1985, the applicant approached Mr. Burton (who
represents the applicant before the Commission), asking him to act on
his behalf since he was in the process of dismissing his current
solicitor. Mr. Burton replied that he would be prepared to act if
the court agreed to a change in the legal aid order. On 27 December
1985, the applicant requested Mr. Booth to transfer the legal aid to
the solicitor of his choice. On 28 December 1985, the applicant
notified the clerk of the Crown Court of his desire to change his
solicitors.
The Crown Court contacted Mr. Booth requesting observations on
the applicant's application before the Court decided the matter. On
3 February 1986, Mr. Booth informed the Chief Clerk of the Court
that Counsel had now been briefed, that a considerable amount of
investigative work had been done, that costs were estimated at £1,000,
that his firm had spent 10 hours with the applicant since his
committal and that they did not understand why the applicant wished to
change.
By letter dated 5 February 1986, the Chief Clerk informed the
applicant that his application to change solicitors had been refused
because, inter alia, Counsel had been instructed and the hearing fixed
for 17 March 1986. The applicant replied on 8 February 1986 that he
had not been given the opportunity to justify his request and asked to
put his reasons before the Court. He stated that he found his
solicitor's conscientiousness questionable and the manner of handling
his case objectionable. On 13 February 1986, the Chief Clerk wrote to
the applicant cautioning him that he had made serious allegations
concerning his solicitor and that the Court would take a very serious
view if they were found to be without foundation. The Chief Clerk
also wrote to the applicant's solicitor referring to the applicant as
"this wretched man" and asking him to attempt to make him see reason.
On 14 February 1986, the applicant attended a conference with
his solicitor and barrister.
On 18 February 1986, the applicant appeared before Mr. Justice
Murchie to present his request for a change in solicitors. The judge
heard representations from the applicant and the applicant's current
solicitor. He refused the applicant's application, on the grounds
inter alia, of the proximity of the trial and that the applicant's
complaints were groundless. He also advised the applicant that his
solicitor and counsel were experienced in this type of case.
On 18 March 1986, the applicant's co-defendant applied to
adjourn the trial in order that a defence witness could be traced.
The application was granted and the case transferred to a different
Crown Court and fixed for trial on 2 June 1986.
On 2 June 1986, on the opening of the hearing, the applicant
applied to the trial judge for a change of his solicitor. Following
the refusal of his application, the applicant dismissed his solicitor
and counsel and thereafter appeared unrepresented.
At the end of the trial, the applicant was found guilty and
sentenced to 9 years' imprisonment with a recommendation for
deportation. He applied for leave to appeal, having drafted his own
grounds. His application was rejected by a single judge of the Court
of Appeal. The applicant instructed solicitors and counsel to renew
the application and leave to appeal was granted by the full court on
3 November 1987.
The appeal, presented by counsel acting for the applicant, was
heard by the Court of Appeal on 28 and 29 March 1988. The Court
dismissed the appeal, finding that the applicant had failed to give
any cogent reason to support his application to change his solicitors
and that the judge had not exercised his discretion improperly in
refusing the application. The Court also held that the applicant had
acted unreasonably on the first day of his trial in dismissing his
counsel of whom he had made no criticism. The Court found no
substance in the criticisms made of the trial judge's conduct of the
trial or her summing-up. The applicant's appeal against conviction
and sentence was dismissed.
On 28 June 1988 the Court refused leave to appeal to the House
of Lords and refused to certify a point of law of general public
importance.
COMPLAINTS
The applicant complains of a violation of Article 6 para. 3
(c) of the Convention in that he was unreasonably denied the
opportunity to be represented by a solicitor or barrister of his own
choosing or in whom he was confident and that he was unreasonably
required to conduct his trial unrepresented.
The applicant also complains that he was denied a fair trial
contrary to Article 6 para. 1 in that the prosecution had referred in
evidence to prejudicial admissions made by the applicant and that
neither the judge nor the prosecution had explained to the applicant
which evidence might have been inadmissible.
THE LAW
1. The applicant complains that he was denied the opportunity to be
represented by a solicitor and barrister of his own choosing contrary to
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention, which provides :
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free
when the interests of justice so require; ..."
The Commission recalls its case-law to the effect that Article 6 para.
3 (c) (Art. 6-3-c) does not guarantee the right to choose an official defence
counsel who is appointed by the Court. Nor does it guarantee a right to be
consulted with regard to the choice of an official defence counsel (see e.g.
No. 6949/75, Dec. 6.7.76, D.R. 6 p. 114). Further, where an applicant is
represented by an officially appointed defence counsel the above provision
cannot be interpreted so as to secure to the accused a right to change such
officially appointed counsel without well-founded and substantiated reasons
(No. 11349/85, Dec. 5.5.86, unpublished).
In the present case, the applicant applied to the Court before his
trial to change his solicitor. After hearing the applicant, the judge refused
the application on the ground, inter alia, that the applicant's complaints
against his solicitor were groundless. His application on the first day of his
trial was also refused by the trial judge, following which the applicant chose
to dismiss both his solicitor and counsel and to represent himself. The
Commission recalls that the applicant appealed to the Court of Appeal which,
having examined the applicant's complaints, dismissed his appeal in this
context on the ground, inter alia, that the applicant had failed to give any
cogent reason to support his application to change his solicitor.
In these circumstances, the Commission finds that the refusal to allow
the applicant to change his solicitor did not constitute a violation of Article
6 para. 3 (c) (Art. 6-3-c) of the Convention.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained that he was denied a fair trial
contrary to Article 6 para. 1 (Art. 6-1) of the Convention since the
prosecution had referred to prejudicial admissions made by the applicant and
that neither the judge nor the prosecution had drawn to the attention of the
applicant evidence which might have been inadmissible.
With regard to the proceedings of which the applicant complains, the
Commission recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the obligations
undertaken by the Parties in the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or fact have
been committed by domestic courts, except where it considers that such errors
might have involved a possible violation of any of the rights and freedoms set
out in the Convention. The Commission refers, on this point, to its
established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222,
236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
The Commission recalls that in the present case the applicant was able
to appeal to the Court of Appeal raising his complaints concerning the
proceedings at first instance. The Court of Appeal however dismissed the
appeal, finding that these criticisms had no substance in them. The Commission
finds no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)