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SMART v. THE UNITED KINGDOM

Doc ref: 28009/95 • ECHR ID: 001-3606

Document date: April 9, 1997

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Cited paragraphs: 0
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SMART v. THE UNITED KINGDOM

Doc ref: 28009/95 • ECHR ID: 001-3606

Document date: April 9, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 28009/95

by Marcus Paul SMART

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

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 3 July 1995 by

Marcus Paul Smart against the United Kingdom and registered on

25 July 1995 under file No. 28009/95;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission and the respondent Government's

indication that they have no observations on the admissibility of the

applicant's complaints;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1968 and resident in

Northampton. He is represented before the Commission by

Mr. Gilbert Blades, a solicitor practising in Lincoln. The facts as

submitted by the applicant may be summarised as follows.

A. Particular circumstances of the case.

In May 1994 the applicant, who was a non-commissioned officer in

the army stationed in Turkey, was charged (pursuant to section 70 of

the Army Act 1955) with indecent assault and common assault contrary

to the Sexual Offences Act 1956 and the Criminal Justice Act 1988,

respectively. He was also charged with disgraceful conduct of an

indecent kind contrary to section 66 of the Army Act 1955

The Convening Officer, by order dated 15 August 1994, convened

a district court-martial to try the applicant on the charges. On

14 September 1994 the court-martial found the applicant guilty of

disgraceful conduct and he was dismissed from the army with disgrace

and reduced to the ranks.

The Confirming Officer subsequently confirmed the conviction and

sentence.

On 11 February 1995 the applicant petitioned the Defence Council

against conviction. The applicant submitted that his conviction was

unsafe and unsatisfactory because the Judge Advocate had erred and

misdirected the court-martial that certain listed matters of evidence

would amount to corroboration of the third charge against the

applicant. By letter dated 24 March 1995 the applicant's representative

was informed of the decision, taken by the Army Board, not to vary the

conviction.

On 29 March 1995 the applicant applied to a single judge of the

Courts-Martial Appeal Court for leave to appeal to that court against

conviction. The applicant raised the same matters before the single

judge as had been raised by him before the Defence Council. On

24 May 1995 this application was rejected. The single judge found that,

even assuming the relevant offence required corroboration, there was

no misdirection in the Judge Advocate's instructions to the court-

martial. Each of the listed matters of evidence was capable of

corroborating an important aspect (albeit not the whole) of the

victim's evidence -such matters are to be regarded as to their

cumulative effect and not as separate items. The single judge also

found that the fingerprint evidence was of exceptional force.

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).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he was denied a fair and public hearing by an independent and impartial

tribunal established by law.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 July 1995 and was registered

on 25 July 1995.

On 28 February 1996 the Commission decided to communicate and

adjourn the application.

On 2 July 1996 the Commission decided to request the Government's

observations. In their letter received on 7 November 1996 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 and public hearing by an

independent and impartial tribunal established by law. The Government

have no observations on the admissibility of the applicant's

complaints.

The Commission considers that the application raises complex and

serious issues under Article 6 (Art. 6) of the Convention which require

determination on the merits. It follows that these complaints of the

applicant 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 THE APPLICATION ADMISSIBLE, without prejudging the

merits.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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