AS TO THE ADMISSIBILITY OF
Application No. 32714/96
by James Stephen TRAYNOR
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 27 August 1996 by
James Stephen TRAYNOR against the United Kingdom and registered on
30 August 1996 under file No. 32714/96;
Having regard to the reports 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
the United Kingdom. He is represented before the Commission by
Mr. John MacKenzie, a solicitor practising in London. The facts as
represented by the applicant may be summarised as follows.
A. Particular facts of the case
On 22 October 1994 the applicant, a Lance Corporal in the British
army, was arrested by the military authorities and he was told that he
was suspected of committing an offence under the Misuse of Drugs Act
1971. Having given a urine sample, he was released without charge. On
29 November 1994 the applicant was again interviewed by the arresting
officer and told that he was suspected of having supplied drugs to a
particular person, at a particular time and in a particular place
contrary to the 1971 Act.
The applicant's trial by district court-martial took place
between 25 and 28 September 1995. The applicant was found guilty and
he was sentenced to 8 months imprisonment, to dismissal from the army
and to be reduced to the rank of guardsman.
On 30 January 1996 the applicant's petition against conviction
and sentence was presented to the Defence Council. The applicant
submitted, inter alia, that the order convening the court-martial had
not been correctly completed and that the Judge Advocate had erred in
law in several respects. By letter dated 2 May 1996 the applicant's
representatives were informed of the decision, taken by the Army Board,
to reject the petition.
B. Relevant domestic law and practice
The Commission refers to the "Relevant domestic law and practice"
contained in the judgment in the Findlay case (Eur. Court HR, Findlay
v. the United Kingdom judgment of 25 February 1997, to be published in
Reports of Judgments and Decisions for 1997) and in its report on the
Coyne application (No. 25942/94, Comm. Report 25.6.96, unpublished).
The Commission also notes the following as regards the Courts-
Martial Appeal Court ("CMAC"). The 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 did not receive a fair and public hearing by an independent and
impartial tribunal established by law.
The applicant further complains that he was not informed of the
specific charges against him until 29 November 1994 and he invokes
Article 6 para. 3(a) of the Convention in this respect.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 August 1996 and was
registered on 30 August 1996. On 27 November 1996 the Commission
decided to communicate the application and request the parties'
observations. In their letter received on 7 March 1997 the Government
stated that they have no observations on the admissibility of the
application.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he was denied a fair hearing by an independent and
impartial tribunal established by law. He also complains, invoking
Article 6 para. 3 (a) (Art. 6-3-a) of the Convention, that he was not
informed of the specific charges against him until 29 November 1994.
The Government have no observations on the admissibility of the
applicant's complaints.
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 after the rejection of the applicant's petition to the
Defence Council the applicant did not then proceed to apply for leave
to appeal to the CMAC. In this respect, the Commission considers that
the grounds, upon which the applicant's petition to the Defence Council
was 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 addition,
the Commission recalls that similar applications were declared
inadmissible where the applicant failed to make any application for
leave to appeal to the CMAC (No. 32821/96, Dec. 17.1.97, unpublished
and No. 26165/95, Dec. 9.4.97, unpublished). In such circumstances, the
Commission considers that, by failing to apply to the CMAC for leave
to appeal to that court, 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