AS TO THE ADMISSIBILITY OF
Application No. 32821/96
by Scott ENION
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 August 1996 by
Scott ENION against the United Kingdom and registered on 29 August 1996
under file No. 32821/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1971 and resident in
Manchester. He is represented before the Commission by John MacKenzie,
a solicitor practising in London.
A. Particular circumstances of the case.
The facts of the case as submitted by the applicant may be
summarised as follows. On 5 October 1995 the applicant, then a Lance
Corporal in the British army, was tried by district court-martial on
alternative charges of absence without leave and desertion in relation
to a period from early 1992 to June 1995. The applicant was convicted
of desertion and sentenced to dismissal from the army. The applicant
was legally represented prior to and during the court-martial.
On 20 October 1995 the applicant's representative presented a
petition to the applicant's Commanding Officer requesting that the
petition be treated as a petition to the Confirming Officer and, if it
was not successful, that it be passed on as a petition to the Defence
Council. The grounds upon which the petition was based were that the
Judge Advocate had misdirected himself in ruling that the prosecution
case did not constitute an abuse of the process and that that Judge
Advocate was wrong in law in ruling that the defence of duress by
necessity was only available to the applicant if he acted in fear of
death or serious injury to himself or to another. The petition was
considered as a petition to the Confirming Officer only and the latter,
having confirmed the conviction and sentence, promulgated the
conviction and sentence on 3 November 1995.
On 22 December 1995 the applicant's representative, having had
no response by then from any party to the petition, applied for leave
to appeal to the Courts-Martial Appeal court. The grounds in that
application were the same as those contained in the petition considered
by the Confirming Officer. By letter dated 11 January 1996 the Courts-
Martial Appeal Court returned the application for leave to appeal to
the applicant because the applicant had not yet petitioned the Defence
Council. That letter also pointed out that once a petition had been
presented to and dealt with by the Defence Council an application to
the Courts-Martial Appeal Court could be submitted. Accordingly, on
12 January 1996 the applicant's representative presented a petition to
the Defence Council. The grounds in that petition were the same as
those contained in the petition considered by the Confirming Officer
and in the application for leave to appeal to the Courts-Martial Appeal
Court. On 22 February 1996 the applicant's representative was informed
of the decision, taken by the Army Board, to reject the applicant's
petition to the Defence Council. The applicant did not subsequently re-
submit an application for leave to appeal to the Courts-Martial Appeal
Court.
B. Relevant domestic law and practice.
The Courts-martial Appeal Court ("CMAC") has the same status and,
in essence, the same procedure as the Court of Appeal, Criminal
Division. The judges of this court include ordinary and ex officio
judges of the Court of Appeal and such judges of the High Court as are
nominated by the Lord Chief Justice. If an appeal petition is rejected
by the Army Board an appellant may apply to a single judge of the CMAC
(and, if necessary, also to the full court) for leave to appeal against
conviction to that court. The CMAC must allow the appeal against
conviction if it considers that the finding of the court-martial is,
under all the circumstances of the case, unsafe or unsatisfactory or
involves a wrong decision on a question of law. The appeal must also
be allowed if there was a material irregularity in the course of the
trial. In any other case the CMAC must dismiss the appeal. If the CMAC
allows an appeal against conviction it must quash the conviction,
although, on the quashing of a conviction, the CMAC's power to
authorise a new trial may come into operation.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that he was denied a fair and public hearing by an independent and
impartial tribunal established by law. He also complains under
Article 6 para. 3 (c) of the Convention that he was not given the
opportunity to have legal representation at the stages of service of
the abstract of evidence and remand for trial.
THE LAW
The applicant complains under Article 6 paras. 1 and 3 (c)
(Art. 6-1, 6-3-c) about the court-martial proceedings. He submits that
the proceedings were unfair and that court-martial itself was neither
independent, impartial nor established by law. He further submits that
he was not given the opportunity to have legal representation at
certain important stages of the proceedings.
The Commission recalls that, pursuant to Article 26 (Art. 26) of
the Convention, it is only competent to consider complaints after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
In this respect the Commission notes that, although the applicant
presented a petition to the Defence Council on 12 January 1996 pursuant
to the CMAC's letter dated 11 January 1996, he did not then proceed to
re-apply for leave to appeal to the CMAC once that petition had been
rejected. In this respect, the Commission considers that the grounds,
upon which the applicant's petitions and his leave application to the
CMAC were based, constituted grounds of appeal which the CMAC is
competent to consider. It further notes that the CMAC can, if it finds
in the appellant's favour on such grounds, quash the conviction. In
such circumstances, the Commission considers that, by failing to re-
apply to the CMAC, the applicant failed to exhaust domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention and the
Commission must therefore declare the application inadmissible pursuant
to Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy