AS TO THE ADMISSIBILITY OF

                      Application No. 30237/96

                      by Gary William ROBERTS

                      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 1 November 1995

by Gary William ROBERTS against the United Kingdom and registered on

16 February 1996 under file No. 30237/96;

     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 1970 and resident in

Wolverhampton. He is represented before the Commission by

Mr. John MacKenzie, a solicitor practising in Middlesex.

A.   Particular circumstances of the case.

     The facts as submitted by the applicant may be summarised as

follows.

     Between October 1990 and April 1991 the applicant served with his

regiment in the Gulf War during the course of which the applicant was

injured and experienced several traumatic incidents involving the death

and serious injury of other soldiers. The applicant claims that as a

result he developed Post Traumatic Stress Disorder ("PTSD") and he

submits supporting documents in this respect including a psychiatric

report. He also submits that as a result of his illness, he began

smoking cannabis on his return with his battalion from the Gulf to

Germany.

     On 3 October 1991 the applicant was stopped by the military

police who found a small quantity of cannabis in the car. The applicant

admitted that the cannabis was his. In early 1992 the applicant's

battalion was moved to Northern Ireland. By charge sheet dated

16 June 1992 the applicant was charged, pursuant to section 70 of the

Army Act 1955, with unlawful possession of a controlled drug contrary

to the Misuse of Drugs Act 1971.

     A district court-martial was convened by the Convening Officer.

The applicant was detained in close arrest for six days before the

court-martial hearing. The applicant, who was represented by an army

officer, pleaded guilty at the court-martial on 17 June 1992 and he was

sentenced to seven months imprisonment and to be dismissed from the

army. In June 1992 the applicant himself submitted a petition against

sentence to the Confirming Officer. This petition was rejected.

Accordingly, on 24 July 1992 the applicant's sentence was confirmed and

the sentence was promulgated on 27 July 1992.

     In August 1992 the applicant consulted a civilian solicitor. On

4 September 1992 that solicitor submitted a petition against sentence

on behalf of the applicant to the Defence Council arguing that the

sentence was too severe in light of the applicant's diagnosed PTSD. On

28 September 1992 this latter petition was rejected. In November 1992

the applicant was released from prison.

     In June 1994 the applicant consulted his current solicitor who,

having learnt about the circumstances of the applicant's court-martial,

submitted in July 1994 another petition to the Defence Council, but

this time against conviction, contending that the applicant had been

improperly deprived of legal representation for his court-martial, had

not had a proper opportunity to prepare his case or to consult with his

army representative and had not been provided with a copy of the charge

sheet. On 14 November 1994 the applicant's representative was notified

that this latter petition had been rejected by the Army Board but no

reasons were given for its rejection. On 9 December 1994 a further

petition was presented to the Defence Council against sentence based

on a further psychiatric report (dated 4 December 1994) in relation to

the applicant's PTSD. On 13 January 1995 the Defence Council notified

the applicant's representative that this petition had also been

rejected.

     In the meantime on 1 December 1994 the applicant applied for

leave to appeal against conviction to the single judge of the Courts-

Martial Appeal Court ("CMAC"), for a direction under section 8(3) of

the Courts-Martial (Appeals) Act 1968 ("the 1968 Act") and/or for an

extension of time in which to appeal to the CMAC. The single judge

refused the application on 20 December 1994. He noted, inter alia, that

the pertinent petition of July 1994 against conviction had been

711 days out of time and that, in addition, an extension of ten weeks

was required for the application for leave to appeal to the CMAC. In

considering the relevant criteria contained in section 8(3) of the 1968

Act for the giving of such a direction, the single judge noted that the

applicant clearly accepted that, if granted leave, it would in any

event not be part of his case that he would not have pleaded guilty at

the court-martial had he been represented by a civilian lawyer. In

addition, there was no suggestion that the applicant's admissions in

a recorded interview were other than accurate. Therefore, the single

judge was not prepared to make a direction under section 8(3) of the

1968 Act nor, consequently, to extend time for the application for

leave to appeal (pursuant to section 9(3) of the 1968 Act).

     The applicant renewed his application for leave to appeal (which

included a request for a direction under Article 8(3) of the 1968 Act)

to the full CMAC, which court rejected the application on 8 June 1995.

That court considered that there was no reasonable explanation for the

applicant's failure to present the petition against conviction to the

Defence Council on time (despite the applicant's PTSD) and that the

interests of justice did not require a direction to be given under

section 8(3) of the 1968 Act.

B.   Relevant domestic law and practice.

     Pursuant to section 8(2) of the Courts-Martial (Appeals) Act 1968

("the 1968 Act"), a person's right of appeal to the Courts-Martial

Appeal Court ("CMAC") shall not be exercisable unless, inter alia, a

petition against conviction is made to the Defence Council within the

prescribed period.

     Section 8(3) of the 1968 Act provides that if a person presents

a petition to the Defence Council against conviction for the purposes

of section 8(2) but fails to do so within the prescribed period and

subsequently applies for leave to appeal, the CMAC (namely, both the

single judge and the full court) may, nevertheless, direct that the

appellant be treated as not having lost his right of appeal if the CMAC

considers that there is a reasonable explanation for the delay and that

it is in the interests of justice that the appellant should be treated

as not having lost the right of appeal.

     Section 9 of the 1968 Act provides that the CMAC (again meaning

the single judge and the full court) may extend the period within which

an application for leave to appeal to that court must be lodged.

COMPLAINTS

     The applicant complains under Article 5 para. 3 of the Convention

that he was held in close arrest prior to his court-martial without

being brought before a judge or other officer authorised by law to

exercise judicial power and under Article 5 para. 4 of the Convention

that there were no proceedings which he could have taken to have the

lawfulness of his detention decided.

     He also complains under Article 6 para. 1 that he was denied a

fair and public hearing by an independent and impartial tribunal

established by law and makes numerous and detailed submissions in this

respect. He also complains under Article 6 para. 3 (b) that he did not

have adequate time and facilities for the preparation of his defence,

under Article 6 para. 3 (c) that he was not enabled to defend himself

through legal assistance and under Article 13 that no effective

domestic remedy was available in respect of all of the above.

THE LAW

     The applicant has a number of complaints about his pre-trial

detention and about his trial by court-martial and he invokes

Articles 5, 6 and 13 (Art. 5, 6, 13) of the Convention in these

respects.

     As regards the applicant's complaints under Article 5 (Art. 5)

of the Convention, the Commission notes that the applicant's pre-trial

detention ended with his conviction on 17 June 1992. It considers that,

even assuming that the applicant had no effective domestic remedy to

exhaust in these respects, the six-month time-limit set down by

Article 26 (Art. 26) of the Convention began to run on that date, being

the end of the situation of which he complains (see, for example, No.

14807/89, Dec 12.2.92, D.R. 72, p. 148). However, since the complaints

were introduced on 1 November 1995, the Commission finds that they have

been introduced outside the time-limit set down by Article 26 (Art. 26)

of the Convention.

     The Commission recalls that, despite the fixed nature of the six-

month time-limit, there may exist certain special circumstances whereby

the failure to comply with that time-limit cannot be held against the

applicant (cf., No. 10416/83, Dec. 17.5.84, D.R. 38, p. 158 and

No. 9833/82, Dec. 7.3.85, D.R. 42, p. 53). In this context, the

Commission notes the psychiatric evidence presented by the applicant

that he suffered from PTSD as a result of his Gulf War experiences.

However, despite this condition, the Commission notes that the

applicant was in a position in August 1992 to consult with and instruct

a solicitor to file a further petition against sentence to the Defence

Council and that this was less than six months after the end of the

applicant's pre-trial detention. The Commission considers that the

applicant could equally have instructed his lawyer to introduce on his

behalf the complaints within the time-limit set out in Article 26

(Art. 26) of the Convention.

     The Commission does not therefore find that the application

discloses any "special circumstances" to justify the failure of the

applicant to respect the six-month time-limit and finds that the

complaints under Article 5 (Art. 5) of the Convention have been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

     The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention submitting that he did not receive a fair hearing by

an independent and impartial tribunal established by law. He also

complains under Article 6 para. 3 (b) (Art. 6-3-b) that he did not have

adequate time and facilities for the preparation of his defence and

under Article 6 para. 3 (c) (Art. 6-3-c) that he was not allowed legal

assistance for the court-martial.

     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 addition, the Commission

recalls that domestic remedies are not considered to have been

exhausted where a domestic appeal is not admitted because of a

procedural mistake, including the failure to respect a domestic time-

limit, unless the competent domestic authority has, nevertheless,

examined the substance of the appeal (No. 12794/87, Dec. 9.7.88,

D.R. 57, p. 251).

     The Commission notes that the applicant lodged a petition to the

Defence Council against conviction on 8 July 1994 which was rejected

on 14 November 1994. The letter notifying the applicant's

representative of this rejection did not indicate why the petition had

been rejected and, in particular, did not state that the petition had

been rejected as being out of time.

     The Commission recalls that on 1 December 1994 the applicant

applied to the single judge of the CMAC for leave to appeal against

conviction. However, because the petition to the Defence Council of

July 1994 against conviction was 711 days late (which petition is a

necessary precursor to an appeal to the CMAC pursuant to section 8(2)

of the 1968 Act) it was also necessary to apply for a direction under

section 8(3) of the 1968 Act that the applicant had not, as a result

of this delay, lost his right of appeal to the CMAC. Furthermore, since

the applicant was also late in making the application for leave to

appeal to the CMAC, it was necessary to apply for an order for an

extension of time (under section 9(3) of the 1968 Act) for the leave

application itself. On 20 December 1994 the single judge found that

neither criteria under section 8(3) of the 1968 Act had been

demonstrated and he refused to give the direction under section 8(3)

of the 1968 Act. Consequently, it was not relevant to extend the time

for the leave application. Equally, on 8 June 1995 the full CMAC ruled

that, since the criteria in section 8(3) of the 1968 Act had not been

met, it could not give a direction under section 8(3) of the 1968 Act.

It was not, therefore, relevant to consider an extension of time for

the leave application itself.

     In addition, the Commission notes that neither the single judge

nor the full court pronounced on the substance of the applicant's

appeal against conviction apart from commenting on the grounds of

appeal for the purposes of considering the criteria set out in

section 8(3) of the 1968 Act. Accordingly, the Commission finds that

the applicant's appeal to the CMAC was not admitted because of a

failure to respect a domestic time-limit before the Defence Council.

The Commission therefore considers, insofar as the applicant argues

that petitions to the Defence Council and an appeal to the CMAC are

effective domestic remedies, that the applicant has not properly

exhausted those remedies within the meaning of Article 26 (Art. 26) of

the Convention.

     The Commission recalls that certain special circumstances can,

in accordance with the generally recognised rules of international law,

absolve an applicant from the obligation to exhaust a domestic remedy

(see, for example, No. 24196/94, Dec. 22.1.96, D.R. 84-A, p. 72). While

the Commission has also in this context considered the psychiatric

evidence presented by the applicant as regards his PTSD, it is again

noted that the applicant was in a position to brief a solicitor in

August 1992, after which that solicitor lodged an appeal against

sentence based on the applicant's diagnosis of PTSD. The Commission

considers that the applicant could equally have instructed his

solicitor to lodge a petition against conviction and that no special

circumstances have been shown to justify his failure to do so.

     Accordingly, the Commission considers that the complaints under

Article 6 (Art. 6) of the Convention must be declared inadmissible

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

     In light of the above conclusions of the Commission in relation

to the applicant's complaints under Articles 5 and 6 (Art. 5, 6) of the

Convention, his complaint under Article 13 (Art. 13) of the Convention

must also be declared 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