AS TO THE ADMISSIBILITY OF

                      Application No. 17571/90

                      by Michele BORRELLI

                      against Switzerland

      The European Commission of Human Rights sitting in private on

2 September 1993, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 F. ERMACORA

                 E. BUSUTTIL

                 G. JÖRUNDSSON

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

           Mr.   M. de SALVIA, Deputy 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 5 November 1990

by Michele Borrelli against Switzerland and registered on 18 December

1990 under file No. 17571/90;

      Having regard to:

-     the report provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      21 January 1993 and the observations in reply submitted by the

      applicant on 18 March 1993;

-     the submissions of the parties at the hearing of 2 September

      1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows:

      The applicant, a Swiss citizen born in 1957, is a trustee

administrator (Treuhänder) residing in Zurich.  Before the Commission

he is represented by Mr. L.A. Minelli, a lawyer practising at Forch in

Switzerland.

PARTICULAR CIRCUMSTANCES OF THE CASE

                                  I.

      The applicant was carrying out a military repetition course

(Wiederholungskurs) during which he undertook guard duties at Landquart

in Switzerland from 17 to 18 October 1989.  While on guard duty he was

placed on 18 October after 14h00 on alert duty (Pikettdienst); as such

he was only permitted to leave the guard building on service orders of

the head of guard.

      On 18 October 1989 at 16h05 the applicant was seen walking,

without gun or helmet, by officer S. to the Landquart village centre.

When questioned, the applicant informed S. that he was on his way to

the hairdresser.  S. reported the incident to the applicant's company

whereupon proceedings were instituted against the applicant.

      On 19 October 1989 Captain L., the company commander, questioned

the applicant.  The latter submitted that he had undertaken 22 hours

of guard duty and was then having a pause.  He referred to the guard

order (Wachtbefehl) which permitted soldiers on guard to take care of

personal hygiene (Körperpflege).  He stated that in his view this

included the right to go to the hairdresser.  The applicant pointed out

that he had not undertaken guard duty since 1981, and that he thought

that he had complied with his duties.  If he was to be punished, he

would request an admonition (Verweis).  He had acted in good faith.

      On 20 October 1990 Captain L. questioned Lance Corporal E. who

had acted as head of guard on 18 October 1990.  E. could not understand

how anybody could go to the hairdresser during guard, since soldiers

on alert duty had to be ready within two minutes if needed.  The

minutes of this questioning were then shown to the applicant.

      By disciplinary criminal order (Disziplinarstrafverfügung) of

20 October 1989, signed by Major M., the battalion commander, the

applicant was punished (Strafe) with five days strict arrest (scharfer

Arrest).  The order stated that the guard building could not be left

for reasons of personal hygiene.  While the applicant's culpability was

slight (leichtes Verschulden), offences on guard duty weighed

particularly severe according to Section 275 para. 1 of the Service

Regulations (Dienstreglement; see below Relevant domestic law and

practice).  The order stated as motives for the offence the applicant's

"carelessness" ("Nachlässigkeit"), "laziness" ("Bequemlichkeit") and

his reprehensible attitude.  His conduct was described as "correct"

("anständig") and "good in his subject matter" ("fachlich gut").

                                  II.

      The disciplinary criminal order was served on the applicant on

20 October 1989 at 21h45.  On the same day at 24h00 the applicant

submitted an appeal against the order.

      In his appeal the applicant submitted inter alia that he could

not understand the grounds of "carelessness" and "laziness"; these

grounds did not transpire from the file, and he had not been questioned

in this respect.  These grounds also contradicted the description of

the applicant's conduct.  In fact, by going to the hairdresser he had

complied with Section 573 of the Service Regulations.

      On 23 October 1989 Colonel F., the regiment commander, dismissed

the appeal.  The decision recalled the guard order and considered that

the applicant's culpability weighed particularly severe.  It noted that

a slight case within the meaning of Section 303 b) of the Service

Regulations was at issue, and it considered that the gravity of the

culpability (Schwere des Verschuldens) called for a severe punishment.

The applicant's personal circumstances did not directly affect the

proceedings.  His conduct during service was a mitigating factor. On

the whole five days strict arrest did not appear arbitrary.

                                 III.

      Colonel F's decision was served on the applicant on 23 October

1989 at 19h30.  On 25 October 1989 the applicant filed a disciplinary

court appeal (Disziplinargerichtsbeschwerde).

      In his appeal the applicant disputed that he had put his own

interests first and that he had acted culpably, since a tidy hair cut

lay in the army's interest.  Insofar as the contested decision referred

to his culpability, his motives, the personal circumstances, and his

conduct in service there were not documents enabling such an

assessment.  The applicant had not been questioned in this respect.

      The trial (Hauptverhandlung) took place before the Military Court

of Appeal 2B on 6 February 1990.  The applicant and his lawyer were

present.  The applicant explained inter alia that he had told the head

of guard, Lance Corporal E., that he was going to the hairdresser and

had received his permission.  The applicant further complained that he

had not been able to consult the case-file.  Captain L. had come to him

while he was standing under the shower.  After the applicant had been

ordered to dry himself, he was told in another room about the offence.

He had not been able to take any notes.  The applicant also explained

that on 16 October 1989 at midnight a course was given on guard duty,

though all soldiers nodded off (eingenickt), including the applicant.

When commencing guard duty on 17 October 1989 nothing had been said

about alert duty.

      The Military Court of Appeal then questioned Captain L.  It

transpires from the minutes that certain questions of the applicant

were not admitted, or rephrased, by the presiding judge.  L. recalled

that he had questioned Lance Corporal E. after the applicant, and that

the latter was able to consult all documents.  When interrogated, the

applicant had said nothing about E. agreeing to his going to the

hairdresser.  L. recalled that he had not informed the applicant of his

right to remain silent.  The applicant had had the possibility to

comment on E.'s statement, though L. no longer remembered whether this

was stated in the minutes of the interrogation.  He, L., had not put

the applicant under pressure when filing his disciplinary court appeal.

      The Military Court of Appeal then granted the applicant's request

and adjourned the trial in order to question further witnesses.

      On 15 March 1990 the applicant complained to the Court that on

6 February 1990 it had not sat publicly.  Thus, when a journalist had

left the room, the President had instructed the court usher no longer

to let the public in and the journalist was unable to return.  This

contradicted Article 6 of the Convention as well as Section 48 of the

Military Code of Criminal Procedure (Militärstrafprozessrecht).

                                  IV.

      The trial was resumed before the Military Court of Appeal on 6

June 1990.  Following the hearing the Court pronounced on 6 June 1990

its decision (Entscheid) in which it dismissed the appeal and ordered

execution of the disciplinary punishment of five days severe arrest.

      In its decision the Court first dealt with the applicant's

objections.  Insofar as he complained that the trial had not been

conducted publicly, the Court found that the presiding judge had the

right to stop the constant coming and going during a trial.  It could

not be said in view thereof, or of other decisions concerning the

taking of evidence, that the presiding judge was biased.

      The Court considered that the case concerned disciplinary

proceedings and did not amount to the determination of a criminal

charge within the meaning of Article 6 of the Convention.  Thus, the

punishment of arrest did not bring about "serious disadvantages" for

the applicant: he continued to receive pay, and after the second day

of arrest he had a daily walk of one hour.  He could contact his

lawyer, and receive mail, albeit on a reduced level.

      The Court found that in any event the complaints under Article 6

of the Convention were unfounded.  Article 6 did not imply a duty to

inform the accused of his right to consult a lawyer, or to remain

silent.  In fact, the applicant's conduct during the appeal proceedings

disclosed that he was able to employ his rights.

      In the Court's opinion, it did not breach Article 6

subpara. 3 (b) if the applicant, after having been served the appeal

decision, was told that he would be placed in arrest if he did not

decide, even before the time-limit of three days expired, whether he

would file a disciplinary court appeal.  The Court considered that the

"immediate execution of the arrest did not reduce defence rights"

("bewirkt der sofortige Strafantritt keine Reduktion der

Verteidigungsrechte"), since a plain written appeal statement sufficed;

any formal shortcomings could be ameliorated later.  The Court found

that "during detention the accused can consider in peace whether he

wants to file an appeal, or withdraw an appeal which he has already

filed" ("während des Arrestvollzuges kann der Angeklagte in Ruhe

überlegen, ob er Beschwerde erheben oder eine erhobene Beschwerde

wiederum zuruckziehen will").  Finally,  Article 6 subpara. 3 (b) did

not grant the accused the right to use a typewriter in a separate room

when filing an appeal.

      With regard to the applicant's legal representation the Court

recalled Section 333 para. 3 of the Service Regulations according to

which private representation was possible in the disciplinary

proceedings, though the applicant had to appear in person, and the

lawyer was excluded from the first interrogation.  It sufficed if the

punished person could be advised by a lawyer during the disciplinary

appeal proceedings and disciplinary court appeal proceedings.

      Under Article 6 subpara. 3 (d) of the Convention the Court found

that no right was granted to question witnesses in disciplinary appeal

proceedings.  The first hearing of witness E., the head guard, had thus

taken place before the Military Court of Appeal, and the applicant had

had the possibility to question him.

      The Court then dealt with the merits of the applicant's appeal.

It noted inter alia that if the applicant now stated that he had

received the permission from E. to go to the hairdresser, in earlier

statements, for instance on 20 October 1989, he had not referred to

this permission.  On the other hand, E. contested having been asked for

permission, and his statement was confirmed by other witnesses.  E.'s

testimony appeared credible.  The Court concluded that "the applicant

was thus to be found guilty of a violation of Section 76 para. 1 (2)

of the Military Criminal Code" ("der Beschwerdeführer ist daher der

Verletzung von Art. 76 Ziff. 1 Abs.2 MStG schuldig zu sprechen").

      The Court further considered that the applicant's military

superiors had correctly assumed that the applicant's offence

constituted a slight case within the meaning of Section 76 para. 2 of

the Military Criminal Code, warranting disciplinary punishment.  After

considering all circumstances the Court found that a disciplinary

punishment of five days strict arrest appeared adequate.

      The applicant served his detention from 10 to 15 September 1990

at the Zurich-Reppischtal military barracks.

RELEVANT DOMESTIC LAW AND PRACTICE

I.    Military Criminal Code

      Section 76 para. 1 of the Military Criminal Code states:

      "1.  Whoever culpably or negligently renders himself unable

      to comply with his service duties as guard,

      whoever deserts his guard post on his own accord or in any other

      way breaches the regulations on guard duty,

      will be punished with imprisonment.

      2.  In slight cases there shall be disciplinary punishment.

      ..."

      "1.  Wer sich vorsätzlich oder fahrlässig ausserstand setzt,

      seine Dienstpflichten als Wache zu erfüllen,

      wer eigenmächtig seinen Wachtposten verlässt oder sonst den

      Vorschriften über den Wachtdienst zuwiderhandelt,

      wird mit Gefängnis bestraft.

      2.  In leichten Fällen erfolgt disziplinarische Bestrafung.

      ..."

      Section 275 para. 1 of the Service Regulations states:

      "1.  Guard duty will ensure the security of the troops,

      accommodation, installations, ammunition and material.  It sets

      high requirements and demands a thorough instruction.  Guard

      offences weigh particularly severe.

      ..."

:

      "1.  Der Wachtdienst hat die Sicherheit von Truppe, Unterkunft,

      Einrichtungen, Munition und Material zu gewährleisten.  Er stellt

      hohe Anforderungen und verlangt eine gründliche Ausbildung.

      Wachtvergehen wiegen besonders schwer.

      ..."

      Section 186 of the Military Criminal Code states that the

duration of strict arrest will last at least three days and at the most

20 days.  Detention is served in isolation.  According to Section 197

et seq. the Company Commander may order severe arrest lasting up to

three days and the Battalion Commander up to ten days; Sections 199 et

seq. envisage higher officers ordering longer periods up to 20 days.

If a disciplinary appeal is filed against the punishment order, the

punishment may not be aggravated upon appeal (Section 345 of the

Service Regulations).

      Section 213 para. 5 of the Military Criminal Code provides that

the decision of the Military Court of Appeal deciding on disciplinary

sanctions will be final.

      According to Section 48 of the Military Code of Criminal

Procedure the proceedings before military courts are public, though the

Court may exclude the public inter alia in the interests of order.

II.   Service Regulations

      Section 303 of the Service Regulations defines disciplinary

faults (Disziplinarfehler) inter alia as "slight cases of criminal

offences in respect of which the Military Criminal Code envisages the

possibility of disciplinary punishment" ("leichte Fälle von

Straftatbeständen, für die das Militärstrafgesetz die Möglichkeit der

disziplinarischen Bestrafung vorsieht").

      According to Section 315 of the Service Regulations the arrest

will be executed immediately after the punishment has been pronounced.

The execution will be interrupted, or adjourned, if a disciplinary

appeal or a disciplinary court appeal is filed.  If the arrest cannot

be executed before the applicant is released from military service,

another military troops or the Cantonal Military Authority will be

authorised to execute the arrest.

      According to Section 349 the time-limit for filing a disciplinary

court appeal is three days.

      In respect of disciplinary proceedings Section 333 of the Service

Regulations, which concerns the defence rights of the accused, states:

      "1.  The accused must be heard on record.

      2.   At the beginning of the interrogation the accused must be

      told the offence laid against him, and he must be granted the

      possibility before the criminal order is issued to consult the

      case-file and to explain his conduct.

      3.   The accused cannot let himself be represented."

      1.   Der Beschuldigte ist zu Protokoll einzuvernehmen.

      2.   Dem Beschuldigten sind zu Beginn der Einvernahme der

      vorgeworfene Sachverhalt zu nennen und vor Erlass der

      Strafverfügung Gelegenheit zu geben, die Akten einzusehen und

      sein Verhalten zu begründen.

      3.   Der Beschuldigte kann sich nicht vertreten lassen."

      Section 573 of the Service Regulations states that a soldier's

"hair must be clean and tidy" (" die Haare sind sauber und gepflegt zu

tragen").

COMPLAINTS

1.    The applicant who submits that Article 6 is applicable in his

case, raises various complaints under this provision.

a)    The applicant complains that the Military Court of Appeal was not

a "tribunal" within the meaning of Article 6 para. 1 of the Convention.

He submits inter alia that the judges are chosen by the Director of the

Office of the Administration of Military Justice (auditeur en chef;

Oberauditor).

b)    The applicant further complains under Article 6 para. 1 of the

Convention that upon institution of the proceedings he was not informed

of his rights of defence.  There was no mention thereof in the minutes.

c)    The applicant complains under Article 6 para. 1 of the Convention

that the proceedings before the Military Court of Appeal were not

conducted publicly.

d)    Also under Article 6 para. 1 of the Convention the applicant

contends that the various decisions taken by the presiding judge

demonstrate his bias.

e)    Under Article 6 subpara. 3 (b) of the Convention the applicant

complains that he was told that he would be placed in detention if he

did not immediately file his disciplinary court appeal, even before the

time-limit of three days had expired.

f)    Also under Article 6 subpara. 3 (b) of the Convention the

applicant complains that he received only with much difficulty a

typewriter and paper to prepare his appeal statement.

g)    Under Article 6 subpara. 3 (c) the applicant complains that

during the disciplinary proceedings and disciplinary appeal proceedings

he could not be represented by a lawyer.

h)    The applicant complains under Article 6 para. 3 (d) of the

Convention of a breach of the equality of arms in that he could only

question witness E. at the trial, i.e. over seven months after E. was

questioned by the military authorities.

i)    The applicant complains under Article 6 para. 3 (d) that at the

trial the presiding judge did not admit, or rephrased, certain

questions put by the applicant to the witnesses.

2.    The applicant complains that as the Military Court of Appeal was

not a court, and its proceedings were not fair, he was not detained

following conviction "by a competent court' within the meaning of

Article 5 para. 1 (a) of the Convention.  For this reason the applicant

claims damages under Article 5 para. 5 of the Convention.

3.    The applicant complains that his conviction was not reviewed by

a higher tribunal as required by Article 2 of Protocol No. 7.  The

applicant submits that the offences of which he was convicted did not

constitute "offences of a minor character" within the meaning of

Article 2 para. 2 of Protocol No. 7.

4.    Under Article 13 of the Convention the applicant complains that

he had no effective remedy to complain about the decision of the

Military Court of Appeal.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 5 November 1990 and registered

on 18 December 1990.

      On 19 October 1992 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

under Article 6 para. 1 and 3 (c) and (d) of the Convention and under

Article 2 of Protocol No.7.

      The Government's observations were received by letter dated 21

January 1993 and the applicant's observations in reply by letter dated

18 March 1993.

      On 11 May 1993 the Commission decided to invite the parties to

an oral hearing on the admissibility and merits of the application.

      The hearing took place on 2 September 1993.  The Government were

represented by their Agent, Mr. O. Jacot-Guillarmod, Deputy Director

of the Federal Office of Justice, and by Mr. J. Van Wijnkoop, Director

of the Office of the Administration of Military Justice (Auditeur en

chef), Mr. F. Schürmann, Deputy Head of the European Law and

International Affairs Section of the Federal Office of Justice, and Mr

J. Lindenmann of the European Law and International Affairs Section of

the Federal Office of Justice.  The applicant, who was also present,

was represented by Mr. L. A. Minelli.

THE LAW

1.    The applicant complains of the proceedings instituted against him

resulting in a punishment of five days' strict arrest.  He invokes

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.

      The issue arises whether the proceedings concerned "the

determination of ... any criminal charge against him" within the

meaning of this provision.

      The applicant considers that Article 6 (Art. 6) of the Convention

is applicable to the proceedings in which he was involved since in his

view they concerned "the determination of (a) criminal charge" within

the meaning of this provision.

      The applicant submits that the maximum possible duration of

strict arrest must be considered.  Thus, Section 186 of the Military

Criminal Code envisages a period of strict arrest of up to 20 days.

At the outset of disciplinary proceedings, the specific period will

never be clear.  For this reason, the protection of Article 6

(Art. 6) of the Convention must apply from the commencement of such

proceedings.  The applicant points out that the shortest possible

duration of imprisonment under the Swiss Criminal Code is three days

(see Section 36 of the Criminal Code); yet even a prison sentence of

this length will fall under Article 6 (Art. 6) of the Convention.

      As regards the manner in which strict arrest is executed, the

applicant points out that there is solitary confinement; a prohibition

of work and of reading books of one's own choice; and a prohibition in

principle of receiving visits or correspondence.  As a result, strict

arrest is considerably more severe than ordinary imprisonment under the

general law.

      The applicant also suggests as a further criterion to be

considered the proportionality between the actual culpability of the

person concerned and the severity of the sanction.  In the present

case, slight culpability was severely punished.

      In the Government's submissions, the applicability of Article 6

(Art. 6) of the Convention must be assessed according to the criteria

developed in the Convention organs' case-law, in particular the Engel

case (see Eur. Court H.R., Engel and others judgment of 8 June 1976,

Series A, no. 22, p. 35, para. 82).  The Government recall that in the

Eggs case, which concerned a disciplinary sanction of 5 days' strict

arrest, Article 6 para. 1 (Art. 6-1) of the Convention was found not

to be applicable (see Comm. Report 4.3.78, D.R. 15 p. 35 at p.65).

      The Government contend that in the present case the Military

Court of Appeal, when imposing the sanction on the applicant, relied

on Section 76 para. 1 in connection with para. 2 of the Military

Criminal Code.  The latter provision concerns disciplinary punishment.

Thus, Swiss law regarded the offence at issue as a disciplinary one.

      The Government moreover point out that disciplinary military law

is addressed to a well defined group of persons and the soldiers are

in a specific situation of subordination.  Thus, in the Eggs case the

Commission found that that offence "infringes a legal rule governing

the internal operation of the armed forces; it does not, in the

particular sector of the armed forces, affect the general interests of

society normally protected by criminal law" (Comm. Report 4.3.78, D.R.

15 p. 35 at p.65).

      Moreover, the Government contend that regard must be had, not to

the maximum possible sanction, but to the sanction imposed in the

concrete case.  The Military Court of Appeal could not have imposed a

harsher sentence.  Furthermore, five days strict arrest in the military

service cannot be compared to five days imprisonment following a

criminal conviction under common law.  Military arrest may not be

served in prisons, and the sanction must as a rule be executed during

the military service (Section 315 of the Service Regulations).

      The Commission recalls the case-law of the Convention organs

according to which, when determining whether such proceedings fall

under the scope of Article 6 (Art. 6) of the Convention, regard must

be had in particular to three criteria (see Eur. Court H.R., Engel and

others judgment, loc. cit., p. 35, para. 82).

      The first question is whether the provisions defining the offence

belong, according to the legal system of the respondent State, to

criminal or to disciplinary law.

      It is true that the offence of which the applicant was charged,

namely the breach of guard duty, is listed in the Swiss Military

Criminal Code.  However, the provision applied was Section 76 para. 2

of the Military Criminal Code which emphasises the disciplinary

character of slight cases, such as the present one.  Moreover, Section

303 of the Service Regulations, themselves concerned with the

discipline within the army, defines disciplinary faults as "slight

cases of criminal offences in respect of which the Military Criminal

Code envisages the possibility of disciplinary punishment".  Indeed,

the Swiss authorities, when instituting the appropriate proceedings,

considered that the offence amounted to a contravention of disciplinary

rather than criminal law.

      Finally, the Commission notes that Section 180 of the Military

Criminal Code, which was also referred to in the Eggs case, determines

that behaviour contrary to the requirements of military discipline is

to be sanctioned as a disciplinary offence unless it falls to be

regarded as an offence within the meaning of the Special Part of the

Military Criminal Code.

      Thus, according to domestic legal system the offence belonged to

disciplinary law.

      Next, the nature of the offence must be considered.

      The Commission observes that the guard set up on 17 and 18

October 1989 at Landquart in which the applicant participated was not

concerned with the protection of public safety.  Rather, the guard

duties were ordered in the context of a military repetition course and

constituted part of the military instruction and training of soldiers.

As such, the duties amounted to a typical aspect of the internal

operation of the military;  they did not affect the general interests

of society.

      The very nature of the offence was, therefore, disciplinary

rather than criminal.

      Finally, the degree of severity of the penalty, which the

applicant risked incurring, must be considered.

      In this respect, the Commission notes the similarities of the

present case to the Eggs case, which concerned that applicant's strict

arrest of five days, which he served after military service had ended

at Basel prison.  In that case the Commission concluded that there had

been no criminal charge against the applicant within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (see Eggs v.

Switzerland, Comm. Report 4.3.78, D.R. 15 p. 35).

      Having regard to the Eggs case the Commission considers that no

substantial difference has been made out in the present case, either

as to the actual duration of the penalty which was five days strict

arrest in both cases, or the manner in which the strict arrest was

enforced.

      It is true that in the present case the Battalion Commander could

have ordered up to ten days strict arrest.  The present case thus

appears to differ from the Eggs case, where the five days arrest

actually imposed on the applicant was the maximum which could be

imposed by the Company Commander (see loc. cit.).

      However, the Commission notes that the Military Court of Appeal

had no jurisdiction to impose a harsher penalty than the one originally

imposed by the Battalion Commander (see mutatis mutandis the case of

Engel and others, loc cit., paras. 84 et seq.).  It follows that the

maximum penalty which the Military Court of Appeal could in fact have

pronounced did not exceed five days strict arrest.

      As a result, the penalty concerned was not sufficiently severe

to bring the offence concerned within the sphere of criminal law.  In

the Commission's opinion, this conclusion would remain the same even

if it was assumed that in the present case the maximum possible

sanction amounted to ten days strict arrest.

      Thus, in applying the criteria developed in the Convention

organs' case-law  to the circumstances of the present case, the

Commission finds that the proceedings instituted against the applicant

were disciplinary in nature.  Thus, they did not concern "the

determination of ... any criminal charge against him" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

      Article 6 (Art. 6) of the Convention was therefore not applicable

to the proceedings instituted against the applicant.

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant complains that as the Military Court of Appeal was

not a court, and its proceedings were not fair, he was not detained

following conviction "by a competent court' within the meaning of

Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.  This provision

states:

      "1. Everyone has the right to liberty and security of person.

      No one shall be deprived of his liberty save in the following

      cases and in accordance with a procedure prescribed by law:

      a. the lawful detention of a person after conviction by a

      competent court ..."

      The Commission recalls that the notion of a "court" in Article

5 para. 1 (a) (Art. 5-1-a) of the Convention requires an organ which,

on account of the way in which it is organised, is judicial in

character in that it is independent of the executive and of the parties

to the case and offers adequate procedural guarantees (Eggs v.

Switzerland, Comm. Report, loc. cit., para. 66, p. 61).

      The Commission further recalls that in two cases against

Switzerland it found a violation of Article 5 para. 1 (Art. 5-1) of the

Convention in that in the military disciplinary cases before the Swiss

authorities the applicants concerned had not been convicted by "a

competent court" within the meaning of this provision (see Comm. Report

13.10.81, Santschi and others v. Switzerland, D.R. 31 p. 5;  Comm.

Report, Eggs. v. Switzerland, loc. cit. para. 72, p. 63).

      As a result, in compliance with its obligations under Article 32

(Art. 32) of the Convention, the Swiss Government subsequently informed

the Committee of Ministers that the Military Criminal Code and the Code

on Military Criminal Procedure had been revised to the extent that a

court with full powers could henceforth reverse decisions of military

commanders (see Resolution DH (83), adopted by the Ministers' Deputies

on 24 March 1983, D.R. 31 p. 48 et seq.).

      In the present case the Commission notes that upon the

applicant's disciplinary court appeal the Military Court of Appeal

conducted a trial which eventually led to the dismissal of the

applicant's appeal.

      The Commission further considers that the requirements of Article

5 para. 1 (a) (Art. 5-1-a) do not necessarily correspond with the

guarantees enshrined in Article 6 (Art. 6) of the Convention.  Having

regard to the applicant's submissions, the Commission finds that the

Military Court of Appeal which convicted the applicant complied with

the requirements of "a competent court" within the meaning of Article

5 para. 1 (a) (Art. 5-1-a) of the Convention.

      This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    Under Article 2 of Protocol No. 7 (P7-2) the applicant complains

that his conviction was not reviewed by a higher tribunal as required

by Article 2 of Protocol No. 7 (P7-2).  According to this provision,

"everyone convicted of a criminal offence by a tribunal shall have the

right to have his conviction or sentenced reviewed by a higher

tribunal. ..."

      The Government submit that Article 2 of Protocol No. 7

(P7-2) is not applicable in the present case.  Thus, the interpretation

of the term "criminal offence" mentioned in this provision must

correspond with that of the term "criminal charge" within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention which, as has been

submitted, does not apply to the proceedings at issue.

      The Commission has just found that the proceedings instituted

against the applicant did not constitute the "determination of ... (a)

criminal charge against him" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.  The Commission considers that for the

same reasons it cannot be said that the applicant was "convicted of a

criminal offence" within the meaning of Article 2 of Protocol No. 7

(P7-2).  This provision was therefore also not applicable to the

proceedings instituted against the applicant.

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4.    Under Article 13 (Art. 13) of the Convention the applicant

complains that he had no effective remedy to complain about the

decision of the Military Court of Appeal.  However, having regard to

its conclusion under Article 2 of Protocol No. 7 (P7-2), the Commission

finds no separate issue under Article 13 (Art. 13) of the Convention.

The remainder of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission        President of the Commission

          (M. de SALVIA)                        (C.A. NØRGAARD)