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