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AS TO THE ADMISSIBILITY OF

Application No. 16592/90

by M.

against the United Kingdom

The European Commission of Human Rights sitting in private

on 7 January 1991, the following members being present:

MM. C. A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, 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 28 March 1988

by M. against the United Kingdom and registered on 16 May 1990 under

file No. 16592/90;

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 1939 and currently

serving a sentence of seven years in H.M. Prison Edinburgh. The facts

as submitted by the applicant may be summarised as follows.

The applicant was tried on charges relating to the supply of

heroin in December 1986. He was represented by counsel and

solicitor. The applicant was convicted on 22 December 1986 and

sentenced to seven years' imprisonment.

The applicant appealed against conviction on the grounds,

inter alia, that there was insufficient evidence on which the jury

could convict. He also appealed against his sentence. The appeal was

heard before the High Court on 28 May 1987 and was adjourned for the

preparation of notes of evidence. The hearing was resumed on

18 February 1988. The applicant was represented by counsel. The

Court dismissed the applicant's appeal finding that there was in fact

sufficient evidence to support the jury's verdict.

The applicant considered that the Court had failed to address

three of his four grounds of appeal and petitioned the Secretary of

State for Scotland under Section 263 (1) of the Criminal Procedure

(Scotland) Act 1975 for his case to be referred back to the High

Court.

The applicant took a small claims action against the Secretary

of State to require the Secretary of State to refer his case to the

High Court. The Sheriff dismissed the action as incompetent and the

applicant's appeal against this decision was dismissed by the Sheriff

Principal on 6 March 1990.

COMPLAINTS

The applicant complains of his conviction and that he did not

have a fair hearing of his appeal, since the High Court failed to

consider three of his grounds. He invokes Article 6 of the Convention.

The applicant also complains of interference with his

correspondence by the prison authorities in:

1) that documents were removed from his letter of 21 September

1988 to Rough Justice (i.e. new evidence, the Opinion of the Court and

Note of Appeal): his allegation is based on the fact that these

documents were not included with the others returned by Rough Justice;

2) that the applicant submitted two letters of 6 February 1989

to the Commission and to a Chief Constable to be posted. When he

asked for these to be returned so that he could re-write them they

were returned in different envelopes indicating that they had been

opened;

3) that documents were removed from the applicant's letter to

the Commission of 22 June 1988 (since when the Secretariat returned

his documents not all of them were enclosed);

4) that documents were removed from the applicant's petition

to the Court dated 6 September 1988 (since the Court later asked the

Secretary of State for copies);

5) that a letter of 14 October 1989 to the Court relating to

his small claims action was stopped by the Prison Governor;

6) that a recorded delivery slip was withheld by the

Governor in or about September - October 1989;

7) that in or about September - October 1989 a cheque was

taken out of a letter sent to the Sheriff Court in relation to his

action.

THE LAW

1. The applicant complains of his conviction and of the hearing

of his appeal and invokes Article 6 para. 1 (Art. 6-1) of the

Convention which provides in its first sentence:

"In the determination ... 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."

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

The applicant also complains that the proceedings were not

fair as required by Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission recalls, however, that the applicant was represented by

counsel at trial and on appeal. It notes that the applicant appealed

on the ground that there was insufficient evidence to convict but that

after considering the notes of evidence, the High Court rejected this

ground of appeal. The Commission finds, after an examination of the

facts as submitted by the applicant, no appearance of a violation of

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

It follows that this part of the application is manifestly

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

Convention.

2. The applicant also complains of interference with his

correspondence by the prison authorities.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of the provisions of the Convention as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

In the present case the applicant failed to petition the

Secretary of State concerning these matters and has, therefore, not

exhausted the remedies available to him under United Kingdom law.

Moreover, an examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this part of

the application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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M. v. the UNITED KINGDOM

M. v. the UNITED KINGDOM

LEXI