AS TO THE ADMISSIBILITY OF
Application No. 27267/95
by David Robert HOOD
against the United Kingdom
The European Commission of Human Rights sitting in private on
1 December 1997, the following members being present:
Mr S. TRECHSEL, President
Mrs G.H. THUNE
Mrs J. LIDDY
MM E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 18 April 1995 by
David Robert HOOD against the United Kingdom and registered on
5 May 1995 under file No. 27267/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations of the respondent Government received on
14 April 1997 and the observations in reply of the applicant
received on 10 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1970 and resident in
Windsor. He is represented before the Commission by Mr. John Mackenzie,
a solicitor practising in London.
A. Particular circumstances of the case
The facts as presented by the parties may be summarised as
follows.
The applicant joined the British Army in 1986 and after training
was posted to Germany. On 1 April 1990 the applicant went missing from
his unit, he returned on 16 May 1990, he went absent again on
17 May 1990 and he gave himself up to the police in the United Kingdom
on 6 August 1990. He was initially held in the United Kingdom for two
weeks after which he was held in close arrest in Germany until October
1990 when he was released to go home on compassionate leave. He
returned to his unit in Germany and was returned to close arrest. On
12 November 1990 the applicant was informed that he was to be released
for deployment to the Persian Gulf and that he would be charged on his
return. On 17 January 1991 he was so deployed. On 21 March 1991 he was
returned to Germany and was sent again on compassionate leave (his
father's illness) and on 9 May 1991 he returned to his unit in Germany.
The applicant went missing again from his unit on 16 June 1991.
He claims that it was following a nervous breakdown, whereas the
Government submit that the applicant had been remanded for trial by
general court-martial on 27 May 1991 on a charge of wounding with
intent (a charge which was subsequently abandoned) and on two charges
of being absent without leave. The applicant remained absent until
9 December 1993 when he gave himself up to the police who allowed him
to return to his unit. He was accommodated in "a barrack block"
awaiting his court-martial on charges of going absent without leave.
On 11 May 1994 the applicant went on two weeks leave but he did not
return at the end of his leave.
At 23.15 on 27 November 1994 the applicant was arrested from his
home by the civilian police and taken to the police station from where,
on 28 November 1994, he was taken by army escort to an army barracks.
The Government submit that on 29 November 1994 the applicant was
brought before his Commanding Officer (Lieutenant Colonel Dawson)
pursuant to Rule 4 of the Rules of Procedure (Army) 1972 and given an
opportunity to make submissions on his detention and on the nature of
his detention, that his Commanding Officer decided that the applicant
should be retained in close arrest because of his previous record of
absence without leave and that the officer explained this to the
applicant. The applicant disputes that he was told why he had been
arrested or by whom and why his close arrest had been ordered. He
denies that he was given the opportunity to be heard, pointing out that
there is no written record of those proceedings before his Commanding
Officer. He submits that on or around 3 December 1994 he was seen
informally by the Unit Adjutant and that it was on 16 December 1994
that he was informed by that Adjutant of the charges against him.
The applicant remained in close arrest until his court-martial
which finished on 4 April 1995 (after which he served his sentence).
He was detained during this period of time in a guard block which
contained 4 small cells. During his detention he was taken to hospital
on a number of occasions for psychiatric care. In or about December
1994 an officer of the applicant's regiment, who was not legally
qualified, was appointed to defend the applicant. A court-martial was
initially convened for 16 January 1995.
On 4 January 1995 the applicant appeared, without prior notice
and without his defending officer being present, before the Unit
Adjutant when he was served with the abstract of evidence for the
court-martial and the applicant claims that the Unit Adjutant asked him
if he wished to make a statement. The applicant claims that,
subsequently, he asked his defending officer to help him to prepare the
statement and that the officer declined, stating that he was too busy.
The applicant had already instructed a civilian solicitor by
11 January 1995, which solicitor, on that day, requested the
preparation of a psychiatric report on the applicant. Since this report
would not be completed by the date fixed for the court-martial, that
date was vacated. The applicant then instructed his present
representative who felt constrained to await a grant of legal aid
before commencing substantive work for the applicant, including the
preparation of the psychiatric report. Accordingly, the applicant
prepared the necessary statement himself and submitted it (together
with one from his girlfriend) at a hearing before the Unit Adjutant on
20 January 1995, when the applicant was also remanded for trial by
court-martial by the Commanding Officer. Once so remanded, the
applicant applied for legal aid. The charge sheet, dated
25 January 1995 and signed by the applicant's Commanding Officer and
by the Convening Officer's staff officer (Major Dalrymple), records two
charges of absence without leave and two of desertion contrary to the
Army Act 1955.
The 72nd day of detention fell on or around 7 February 1995.
Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army)
1972, a direction was issued on 3 February 1995, which was signed on
behalf of the Convening Officer (by Major Dalrymple) and which attached
an authorisation from the Commander in Chief directing the applicant's
continued detention. However, the Commander in Chief was to be informed
if the court-martial did not take place by 7 March 1995 (the
applicant's 100th day of detention). The applicant submits that on or
around 13 February 1995 he asked a regimental sergeant who had been
visiting someone else in the guard room why he had not been released
and that he was informed of the decision of the Convening Officer and
the Commander in Chief to extend his detention.
On 8 February 1995 legal aid was refused since it was considered
that the case was not one in which the interests of justice required
that the accused should be professionally represented. However, by
letter dated 14 February 1995 the Ministry of Defence confirmed the
grant of legal aid. Once legal aid was granted, the applicant's
solicitor on the same date requested the preparation of a psychiatric
report.
On 17 February 1995 the applicant commenced habeas corpus
proceedings, submitting that his detention was unlawful. The affidavits
filed on behalf of the applicant by his legal representatives took
issue with the regularity of the 72 day delay report. The applicant's
own affidavit was annexed to the affidavit of one of his
representatives. In his affidavit, the applicant submitted that he had
been given no opportunity to present his case against his on-going
detention in close arrest; that he suffered from a psychiatric
condition making close arrest difficult to cope with; that he did not
know, and had received no formal notification as to, who had authorised
the extension of his detention after the 72nd day or when this had been
done; and that he did not consider that there was any good reason why
his court-martial had been further delayed. He requested that his
position be "regularised" and that he be released and stated that he
had no intention of absconding again. On 20 February 1995 the applicant
was taken before the regimental headquarters discipline clerk without
notice and required to sign a form outlining what his pleas at the
court-martial would be. The form noted that the applicant would plead
not guilty.
On 21 February 1995 the High Court rejected the applicant's
habeas corpus application on the grounds that his detention was in
accordance with domestic law. It noted that a court-martial had been
initially fixed for 16 January 1995 and that the reason for the delay
in holding the court-martial was the defence's need to obtain a
psychiatric report. As to the completion of the 72 day delay report,
the court found that the report had been properly completed, recording
that the reason for his continued detention was to prevent the
applicant from absenting himself again. The court described the reason
given for the applicant's continuing detention as "a perfectly
understandable reason" having regard to the charges against the
applicant.
By letter dated 22 February 1995 the applicant's solicitor
notified the Convening Officer that the time required for the
preparation of the psychiatric report (bearing in mind the recent grant
of legal aid) meant that the defence would not be ready for
1 March 1995 (this being the further date under consideration for the
court-martial). At the end of 100 days detention the applicant was
informed that his detention had been extended once again. By notice
dated 17 March 1995 a district court-martial was convened to take place
in early April. A further convening order dated 1 April 1995 was
circulated to the parties, which order changed the location but not the
date of the court-martial.
The court-martial took place on 3 and 4 April 1995. The applicant
claims that each person who attended the court-martial was required to
give his or her name and address to an army official. The applicant
pleaded not guilty. He claims that the prosecution relied heavily on
his statement on the abstract of evidence. He was convicted on the two
charges of absence without leave and on one of the charges of
desertion, the remaining charge of desertion being reduced to one of
absence without leave. He was ordered to undergo detention for eight
months and to be dismissed from the service. The sentence was expressed
as taking into account the applicant's period of close detention
immediately prior to the court-martial (125 days) but not the earlier
period of detention in 1990.
On 10 April 1995 the applicant submitted a petition to the
Confirming Officer, requesting that, in the event that the conviction
and sentence were confirmed, the petition be passed on to the Army
Board. By letter dated 4 May 1995 the Confirming Authority informed the
applicant's representatives that the conviction had been confirmed and,
accordingly, the conviction and sentence were promulgated on
10 May 1995. Since no reply had been received to the applicant's
representatives' letters enquiring, inter alia, whether the petition
had been passed on to the Army Board, the applicant's representatives
submitted the petition to the Army Board on 1 June 1995 and also filed
an appeal to the Courts-Martial Appeal Court ("CMAC") on 15 June 1995
in view of the time-limits before that Court.
By letter dated 13 July 1995 it was confirmed that the
applicant's petition to the Army Board had been denied. Since the
Registrar of the CMAC considered the earlier application for leave to
appeal to have been premature, the applicant re-submitted the
application to the single judge of the CMAC for leave to appeal to that
court by letter dated 2 August 1995. On 13 September 1995 the single
judge rejected the application for leave to appeal. The appeal to the
full Courts-Martial Appeal Court was rejected on 18 March 1996.
B. Relevant domestic law and practice
The main provisions governing the arrest and detention of persons
subject to military law are contained in sections 74-75 and 186-190 of
the Army Act 1955 ("the 1955 Act"), in Rules 5, 6 and Schedule 1 of the
Rules of Procedure (Army) 1972 ("the 1972 Rules") and in paragraphs
6.004-6.008 and 6.047 of the Queen's Regulations for the Army 1975.
Desertion and absence without leave constitute offences under the
1955 Act. The punishment for the offence of desertion is imprisonment
for an unlimited term (subject to the sentencing powers of the court-
martial in question) and that for absence without leave is imprisonment
for a maximum of 2 years.
1. Arrest
In general, once there is reasonable cause to suspect that a
person subject to military law has deserted or gone absent without
leave, the civilian police, an officer, warrant officer, non-
commissioned officer or soldier of the regular forces may arrest that
person. A person so arrested must, as soon as is practicable, be
brought before a civilian court of summary jurisdiction (section 186
of the 1955 Act). In addition, a warrant for the arrest of a person
subject to military law and considered to have deserted or be absent
without leave may be issued by his/her Commanding Officer and any such
warrant must be addressed to the civilian police. A person arrested in
pursuance of such a warrant must be handed over as soon as is
practicable to the military authorities together with a certificate
which records the fact, date and time of the arrest (section 190A of
the 1955 Act).
2. Detention
The relevant rules governing the detention of the accused use the
word "arrest" when referring to detention. The accused's detention can
be in the form of "open arrest" or "close arrest" and the type of
"arrest" must be specified in the order for arrest. Open arrest
confines the accused to barracks but otherwise allows him freedom of
movement. Close arrest means that the accused is confined to a cell in
the unit guardroom under constant supervision of the guard.
Section 75 of the 1955 Act provides that the allegations against
a person subject to military law who is under arrest shall be duly
investigated without unnecessary delay and as soon as may be either
proceedings shall be taken for punishing his offence or he shall be
released from arrest. In addition, should that detention last longer
than 8 days without a court-martial being convened, a report (a "delay
report") on the necessity for further delay shall be made by the
person's Commanding Officer to the prescribed authority in the
prescribed manner and a similar report shall be made to the same
authority and in the same manner every eight days until a court-martial
is assembled or the offence is dealt with summarily or the accused is
released from detention.
Section 76 of the 1955 Act provides that any allegation that the
person subject to military law has committed an offence under the 1955
Act must be reported in the form of a charge to that person's
Commanding Officer and before any action is taken the Commanding
Officer must investigate the charge. According to section 77, where in
the course of his investigations it appears to the Commanding Officer
that proceedings in respect of the charges could, in the interests of
the best administration of justice, be dealt with other than under the
relevant Act under which they were preferred, the Commanding Officer
may stay the charges. (This allows the charges to be dealt with under
the other service Acts or by the civilian authorities.) This section
also allows the Commanding Officer to dismiss the charge if he is of
the opinion that it ought not to be proceeded with.
If the Commanding Officer has not stayed or dismissed the charge,
and the charge is one that can be dealt with summarily by him and he
considers that it is one to be so dealt with, he must deal summarily
with the charge, taking evidence, reducing it to writing, deciding as
to the guilt or innocence of the accused and rendering sentence
(section 78 of the 1955 Act). Otherwise the Commanding Officer must
take the prescribed steps to have the case tried by court-martial.
Rule 4 of the 1972 Rules provides that when a person is detained
by a military authority, his Commanding Officer shall, unless it is
impracticable, within 48 hours of becoming aware that he is so detained
have such person brought before him, inform him of the charge against
him and begin to investigate it.
Rule 5 of the 1972 Rules provides that the report to which
Article 75 of the 1955 Act refers shall be in the form set out in
Schedule 1 to the 1972 Rules, shall be signed by the Commanding Officer
of the person detained and shall be sent to the person who would be
responsible for convening the court-martial. According to Schedule 1
of the 1972 Rules the report must, inter alia, specify whether the
accused is in close or open arrest; the reasons for his detention;
whether an abstract of evidence was taken and when; whether an
application for trial has been made and, if not, why not; whether Army
Legal Services' advice has been sought, received and followed; whether
a date for trial has been fixed; and the reasons for the delay since
the last report. Rule 6 of the 1972 Rules provides that the accused
shall not be held in arrest for more than 72 consecutive days without
a court-martial having been convened unless the Convening Officer
directs in writing, citing reasons, that the accused shall not be
released from detention.
Paragraph 6.005 of the Queen's Regulations states that the mere
allegation that a person subject to military law has committed an
offence does not of itself necessarily call for or warrant placing that
person under arrest of any description. If the offence is trivial, the
offender is to be informed of the charge and required to report to the
unit orderly room at a specific date and time. If arrest is necessary,
the category of arrest is to be determined in the interests of the
service and by the nature of the alleged offence. Generally, a person
is to be placed under close arrest only when confinement is necessary
to ensure his safe custody or to maintain discipline.
The circumstances which would warrant placing an "offender" under
"close" arrest include those where the accused is deliberately trying
to undermine discipline, is likely to injure himself or others or is
likely to suborn witnesses; where he has not surrendered but has been
apprehended as an illegal absentee or has habitually absented himself;
and where, having regard to the nature or prevalence of the alleged
offence which is under investigation, it is undesirable in the
interests of discipline that he should be at large or allowed to
consort with his comrades.
Paragraph 6.007 of the Queen's Regulations provides that (subject
to, inter alia, the general principle that the accused is not to be
unnecessarily held under arrest) Commanding Officers are responsible
for ensuring that in each case the need to keep an accused under
arrest, together with the form of that arrest, is kept under constant
review. As necessary, the form of arrest may be changed or the accused
released.
Paragraph 6.047 provides that a charge preferred against an
officer or soldier is to be dealt with at the earliest opportunity.
Accordingly, it is provided, inter alia, that on the receipt of every
delay report the Convening Officer is to satisfy himself (if the
accused is in detention) as to the necessity of the ongoing detention
(sub-section (a) and (b)). On receipt of the fourth delay report, or,
in any event, after 40 days detention, the Convening Officer is to make
a special report to his/her superior officer outlining the reasons for
the delay, when it is expected the accused will be brought to trial and
the reasons for the continued detention (sub-section (c)). If an
accused is not brought to trial by the 72nd day, the latter superior
officer must, in turn, make a special report to the Commander in Chief
by that day (sub-section (d)). On receipt of such special reports, the
superior officer and Commander in Chief mentioned are to take all
practical steps to expedite the trial of the accused (subsection (e)).
Where an accused has been in detention for 72 consecutive days
without a court-martial being convened, a direction in accordance with
Rule 6 of the 1972 Rules not to release the accused can only be given
with the prior approval of the Commander in Chief, who is required to
make a special report to the Ministry of Defence for the information
of the Defence Council. This report is to contain the reasons for the
delay, when it is expected the accused will be brought to trial and the
reasons for the continued detention (sub-section (f)).
3. Legal Aid
The provision of legal aid is regulated by paragraphs 6.094-6.095
of the Queen's Regulations together with Chapter 6, Annex D to those
Regulations. Annex D provides, inter alia, that legal aid is available
to those who "are to be tried by court-martial". The information
booklet issued by the army and entitled "The rights of a soldier
charged with an offence under the Army Act 1955" provides that a
soldier can apply for legal aid with a view to being defended by a
civilian lawyer once his Commanding Officer has remanded him for trial
by court-martial.
4. Habeas Corpus
The Commission refers to the outline of the habeas corpus
proceedings in the judgment of the Court in the X v. the United Kingdom
case (Eur. Court HR, X v. the United Kingdom judgment of
5 November 1981, Series A no. 46, pp. 9-11, paras. 17-19). Habeas
corpus is available to persons in military custody (R v Royal Army
Service Corp. Colchester ex p Elliott (1949) 1 All E 373). In that
context, the court will enquire into the period of time which has
elapsed before the court-martial and will, if necessary, order release
(Re Mackle, reported in The Independent of 26.2.1993).
5. District army courts-martial
The relevant domestic law and practice are outlined in the
Findlay and Coyne judgments (Eur. Court HR, Findlay v. the United
Kingdom judgment of 25 February 1997 and Coyne v. the United Kingdom
judgment of 24 September 1977, both to be published in the Reports of
Judgments and Decisions for 1997). On 1 April 1997 the Armed Services
Act 1996 came into force. This Act substantially amends, in particular,
the role of the Convening Officer in court-martial proceedings.
Section 94 of the 1955 Act provides that a court-martial will be
an open trial. Paragraph 6.101 of the Queen's Regulations provides that
members of the press and public are to be permitted to attend a court-
martial and trial listings are to be posted beforehand in a place
accessible to the public.
COMPLAINTS
The applicant complains under Article 5 para. 3 of the Convention
that he was not brought promptly before a judge or any officer
authorised by law to exercise judicial power. He also complains about
the lack of a procedure, complying with Article 5 para. 4 of the
Convention, to challenge his continued detention. He also invokes
Article 5 para. 5 and Article 13 in relation to those alleged
violations of Article 5 paras. 3 and 4 of the Convention.
The applicant also complains under Article 6 para. 1 of the
Convention that he did not have a fair and public hearing by an
independent and impartial tribunal established by law.
He further complains, under Article 6 para. 3 of the Convention,
about the lack of legal representation when he was served with the
abstract of evidence, about his defending officer's alleged conflict
of interest and about the decision of the court-martial to accept a
written statement of one of the witnesses and not to call another
witness requested by the defence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 April 1995 and was
registered on 5 May 1995.
On 26 November 1996 the Commission decided to communicate the
application under Article 6 para. 1 and Article 5 paras. 3, 4 and 5 of
the Convention.
The Government's observations were received on 14 April 1997
after one extension of the time-limit fixed for that purpose and those
of the applicant were received on 10 June 1997.
THE LAW
1. Article 26 (Art. 26) of the Convention
The Commission notes that the applicant claims that he was
detained from 6 August 1990 until October 1990, for a subsequent short
period until 12 November 1990 and from 9 December 1993 until
11 May 1994. The final period of pre-trial detention was from
27 November 1994 to 4 April 1995. However, it is noted, and it is
argued by the Government, that the present application was not
introduced until 18 April 1995 which is more than six months after the
end of all except that final period of pre-trial detention.
Accordingly, the Commission considers that, insofar as the
applicant's complaints under Article 5 (Art. 5) of the Convention
relate to the periods of detention prior to 27 November 1994, any such
complaints have been introduced outside the six month time-limit set
down in Article 26 (Art. 26) of the Convention (No. 24519/94, Dec.
17.1.97, unpublished). Any such complaints are, accordingly,
inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of
the Convention.
2. The substantive complaints
(a) Article 5 para. 3 (Art. 5-3) of the Convention
The applicant complains that after his arrest he was not brought
promptly before a judge or any officer authorised by law to exercise
judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of
the Convention. He refers, inter alia, to the lack of procedures by
which he could be informed about and/or challenge his detention. He
maintains that he was not told the reasons for his arrest, who had made
the decision to detain him under close arrest, why he had been so
detained or whether, and why, his detention had been prolonged. He also
submits that the officers deciding on his detention were all connected
to the prosecution of the case.
Article 5 para. 3 (Art. 5-3) reads as follows:
" Everyone arrested or detained in accordance with the provisions
of paragraph 1.c. of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable
time or to release pending trial. Release may be conditioned by
guarantees to appear for trial."
The Government submit that, pursuant to Rule 4 of the 1972 Rules,
the applicant was brought promptly before his Commanding Officer on
29 November 1994, who gave the applicant the opportunity to be heard
as to his detention and that that officer decided that the applicant
should be held in close arrest because, as was explained to the
applicant, of his previous record of absence without leave. The
Government further argue that the Commanding Officer was an officer
authorised by law to exercise judicial power within the meaning of
Article 5 para. 3 (Art. 5-3) of the Convention. In the first place,
regard must be had to the special circumstances which apply in the
armed forces and the special position of those who serve in them.
Secondly, in view of the provisions of Rule 4 of the 1972 Rules and
paragraphs 6.005-6.006 of the Queen's Regulations, the Commanding
Officer was required to decide promptly whether the applicant should
be detained (reviewing all circumstances relevant to the detention and
deciding whether there were circumstances justifying such detention)
and as to the nature of any such detention. Thirdly, the matters which
he must consider are, with certain adaptation to the military context,
the same as would be considered by a Magistrate.
The Government also submit that the Commanding Officer is
independent of the executive and of the parties to the extent that this
is a realistic requirement in the necessarily self-contained military
system. The Government submit that the Commanding Officer was not
immediately concerned, as the applicant alleges, with the prosecution
of the case, since that officer's other roles (following the making of
an allegation against a soldier and any subsequent remand for trial by
court-martial) are either investigative or quasi-judicial. As regards
the special military context referred to above, the Government add that
the "executive" is the Ministry of Defence but that in such a military
procedure there is only one true party - namely the accused, from whom
the accused's Commanding Officer is independent. Insofar as the
Commanding Officer is in command of the accused, the Government argue
that the rules contained in the 1955 Act, the 1972 Rules and in the
Queen's Regulations guarantee the Commanding Officer's independence
from the accused.
The applicant does not contest that he was brought before his
Commanding Officer on 29 November 1994 but maintains his position that
he was not told the reasons for his arrest and that there exists no
provision to inform him of the reasons. Further, he was not told who
had made the decision to detain him under close arrest and why he had
been so detained. He points out that there exists no written record of
those proceedings before his Commanding Officer. His Commanding
Officer, and all others making decisions as to his detention, were all
immediately concerned with the prosecution of the case against him and
were not, as such, independent of the prosecution.
(b) Article 5 para. 4 (Art. 5-4) of the Convention
The applicant further complains under Article 5 para. 4
(Art. 5-4) of the Convention about the lack of a procedure to challenge
the decision to keep him in close arrest. He submits that the habeas
corpus proceedings concerned solely the domestic lawfulness of his
continued detention and provided no opportunity to have the merits of
his case for release considered. He also submits that the High Court
refused to consider certain grounds of his application including his
argument that close arrest was not appropriate for a person with
psychiatric problems. He also argues that, apart from the habeas corpus
procedure, there is no other procedure whereby he could challenge his
continued detention and that, in any event, he was given no information
during his detention which would have allowed him to contest his
detention.
Article 5 para. 4 (Art. 5-4) reads as follows:
" Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
The Government submit that the habeas corpus procedure, which is
available to persons held in military custody, includes an examination
of the domestic legality of an accused's detention, of whether there
is sufficient evidence to justify the decision to detain the accused
and of certain facts where such facts are a necessary pre-condition of
the power to detain. The court may also enquire into the period of time
which has elapsed or is likely to elapse before trial and will, if
necessary, order release. Accordingly, and while it is true that the
habeas corpus proceedings are concerned with the lawfulness of
detention in domestic law, in view of the breadth of the investigation
there is no relevant difference for present purposes between a review
of lawfulness in domestic law and under the Convention.
In addition, the Government dispute, inter alia, that the
applicant made the submissions to the High Court which he above claims
to have made. Moreover, and independently of the habeas corpus
proceedings, the Government submit that the Commanding Officer was,
pursuant to paragraph 6.007 of the Queen's Regulations, under a duty
to keep under constant review the need to continue to detain the
applicant together with the nature of that detention. In this respect,
the Government submit that the applicant's Commanding Officer continued
to fear that the applicant could abscond if released, given his history
of doing so and that regular delay reports were completed as regards
the applicant's continued detention. Finally, the Government note that
one of the reasons for the delay in the court-martial and the
consequent prolongation of the applicant's detention was the request
by the applicant's solicitor for a psychiatric report.
The applicant maintains in his observations his submissions about
the High Court refusing to deal with certain grounds of his habeas
corpus application. He also points out that his solicitor had no option
but to wait until the grant of legal aid before undertaking the costs
involved in obtaining a psychiatric report. The applicant could not
apply for legal aid until he had been remanded for trial
(20 January 1995) and, having been initially refused, legal aid was not
granted until 14 February 1995. He also observes that a habeas corpus
application was only available once he had been detained for an
excessive period of time.
(c) Article 5 para. 5 and Article 13 (Art. 5-5, 13) of the Convention
The applicant also invokes Article 13 and Article 5 para. 5
(Art. 13, 5-5) of the Convention as regards the matters of which he
complains under Article 5 paras. 3 and 4 (Art. 5-3, 5-4) of the
Convention claiming that he did not have an effective domestic remedy
for those alleged violations of the Convention.
Article 5 para. 5 (Art. 5-5) reads as follows:
" Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
Article 13 (Art. 13) reads as follows:
" Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government accept that any breach of Article 5 para. 3
(Art. 5-3) of the Convention would not give rise to a domestic remedy.
However, they consider that the civil action of false imprisonment
suffices for the purposes of Article 5 para. 5 (Art. 5-5) for any
breach established of Article 5 para. 4 (Art. 5-4) of the Convention.
The applicant, in his observations, argues that there is no right to
claim damages for false imprisonment in the domestic courts on the
grounds that detention was in breach of the Convention.
(d) Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention
Finally, the applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention that he did not receive a fair and public
hearing by an independent tribunal established by law.
The main focus of the applicant's complaint is an alleged lack
of independence and impartiality on the part of the court-martial. He
also complains that he did not have a fair hearing and in this respect
he complains, specifically invoking Article 6 para. 3 (Art. 6-3), about
the lack of legal representation when he was served with the abstract
of evidence, about his defending officer's alleged conflict of interest
in light of that officer's position in the army and about the decisions
of the court-martial to accept a written statement of one of the
witnesses and not to call another witness requested by the defence.
He also submits that the hearing was not public within the
meaning of Article 6 para. 1 (Art. 6-1) alleging that those who
attended the court-martial had to record their names and addresses in
a book. He further complains that the court-martial was not
"established by law" because of the convening of the court martial in
an ad hoc manner, the way in which the Convening Officer and Reviewing
Authorities are appointed and the "insubstantial" nature of the court-
martial system which could not, for example, produce a record of the
applicant's detention. The Government have no observations on the
admissibility of the applicant's complaints under Article 6 para. 1
(Art. 6-1) of the Convention.
Article 6 paras. 1 and 3 (Art. 6-1, 6-3) read as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. ..."
"3. Everyone charged with a criminal offence has the following
minimum rights: ...
b. to have adequate time and facilities for the preparation
of his defence;
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;
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him; ..."
The Commission considers that this part of the application raises
serious issues under Article 5 paras. 3, 4 and 5 (Art. 5-3, 5-4, 5-5),
under Article 6 (Art. 6) and under Article 13 (Art. 13) of the
Convention which require determination on the merits. It follows that
these complaints cannot be dismissed as manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other ground for declaring them inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE, the applicant's complaints relating to the
periods of detention prior to 27 November 1994; and
DECLARES ADMISSIBLE the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy