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ENION v. THE UNITED KINGDOM

Doc ref: 32821/96 • ECHR ID: 001-3480

Document date: January 17, 1997

Inbound citations: 3
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Cited paragraphs: 0
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Outbound citations: 0

ENION v. THE UNITED KINGDOM

Doc ref: 32821/96 • ECHR ID: 001-3480

Document date: January 17, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 32821/96

by Scott ENION

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 7 August 1996 by

Scott ENION against the United Kingdom and registered on 29 August 1996

under file No. 32821/96;

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 1971 and resident in

Manchester. He is represented before the Commission by John MacKenzie,

a solicitor practising in London.

A. Particular circumstances of the case.

The facts of the case as submitted by the applicant may be

summarised as follows. On 5 October 1995 the applicant, then a Lance

Corporal in the British army, was tried by district court-martial on

alternative charges of absence without leave and desertion in relation

to a period from early 1992 to June 1995. The applicant was convicted

of desertion and sentenced to dismissal from the army. The applicant

was legally represented prior to and during the court-martial.

On 20 October 1995 the applicant's representative presented a

petition to the applicant's Commanding Officer requesting that the

petition be treated as a petition to the Confirming Officer and, if it

was not successful, that it be passed on as a petition to the Defence

Council. The grounds upon which the petition was based were that the

Judge Advocate had misdirected himself in ruling that the prosecution

case did not constitute an abuse of the process and that that Judge

Advocate was wrong in law in ruling that the defence of duress by

necessity was only available to the applicant if he acted in fear of

death or serious injury to himself or to another. The petition was

considered as a petition to the Confirming Officer only and the latter,

having confirmed the conviction and sentence, promulgated the

conviction and sentence on 3 November 1995.

On 22 December 1995 the applicant's representative, having had

no response by then from any party to the petition, applied for leave

to appeal to the Courts-Martial Appeal court. The grounds in that

application were the same as those contained in the petition considered

by the Confirming Officer. By letter dated 11 January 1996 the Courts-

Martial Appeal Court returned the application for leave to appeal to

the applicant because the applicant had not yet petitioned the Defence

Council. That letter also pointed out that once a petition had been

presented to and dealt with by the Defence Council an application to

the Courts-Martial Appeal Court could be submitted. Accordingly, on

12 January 1996 the applicant's representative presented a petition to

the Defence Council. The grounds in that petition were the same as

those contained in the petition considered by the Confirming Officer

and in the application for leave to appeal to the Courts-Martial Appeal

Court. On 22 February 1996 the applicant's representative was informed

of the decision, taken by the Army Board, to reject the applicant's

petition to the Defence Council. The applicant did not subsequently re-

submit an application for leave to appeal to the Courts-Martial Appeal

Court.

B. Relevant domestic law and practice.

The Courts-martial Appeal Court ("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 was denied a fair and public hearing by an independent and

impartial tribunal established by law. He also complains under

Article 6 para. 3 (c) of the Convention that he was not given the

opportunity to have legal representation at the stages of service of

the abstract of evidence and remand for trial.

THE LAW

The applicant complains under Article 6 paras. 1 and 3 (c)

(Art. 6-1, 6-3-c) about the court-martial proceedings. He submits that

the proceedings were unfair and that court-martial itself was neither

independent, impartial nor established by law. He further submits that

he was not given the opportunity to have legal representation at

certain important stages of the proceedings.

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, although the applicant

presented a petition to the Defence Council on 12 January 1996 pursuant

to the CMAC's letter dated 11 January 1996, he did not then proceed to

re-apply for leave to appeal to the CMAC once that petition had been

rejected. In this respect, the Commission considers that the grounds,

upon which the applicant's petitions and his leave application to the

CMAC were 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

such circumstances, the Commission considers that, by failing to re-

apply to the CMAC, 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

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