The European Commission of Human Rights sitting in private on

11 December 1986, the following members being present:

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        F. ERMACORA

                        G. JÖRUNDSSON

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        H. VANDENBERGHE

                    Mrs G.H. THUNE

                    Mr. F. MARTINEZ

                    Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 November 1984 by J.W.R.

against the United Kingdom and registered on 18 February 1985 under file No.

11396/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as they have been submitted by the applicant, a British

citizen born in Dundee in 1947 and currently detained in prison in

Scotland, may be summarised as follows:

On 30 March 1984 a notice of citation under Section 75 of the Criminal

Procedure (Scotland) Act 1975 ("the 1975 Act") was served on the

applicant to appear at the Sheriff Court, Dundee, on Monday

30 April 1984 for a diet of trial at which the applicant was to answer

an indictment on ten charges of fraud and one charge relating to the

Bail Act.  The applicant was not present at his home and the notice of

citation and the indictment were served by a police officer leaving

them with his father at the applicant's address.  The warrant of

citation relating to these offences had been issued on 21 March 1984,

fixing the date of the trial diet for 30 April 1984.  In accordance

with Sections 75 and 111A of the 1975 Act, a notice of citation must

call upon the accused to appear and answer to the indictment at a

trial diet "not less than 29 clear days after the service of such

indictment and notice", and where the last day of the notice period

falls on a Saturday, Sunday or court holiday such period shall extend

to and include the next day which is not a Saturday, Sunday, or a

court holiday.  The applicant contends before the Commission that the

last such day for good service was 29 March 1984, and that accordingly

no service was effected on him at all by the purported service on

30 March 1984, since such service was not capable of being effective

in respect of the predetermined trial date of 30 April 1984.  This

argument was not raised by the applicant at his trial.

The trial was duly held before the Dundee Sheriff's Court, and he was

convicted on 11 May 1984 of all ten charges of fraud and the charge of

contravening the Bail (Scotland) Act 1980.  The applicant was remitted

to the High Court for sentence, and on 23 May 1984 was sentenced to

four years' imprisonment in respect of the fraud charges and a

concurrent term of three months' imprisonment in respect of the Bail

Act charge.

On 14 May 1984 the applicant lodged notice of intention to appeal,

followed on 28 May 1984 with a note of appeal against conviction and

sentence.

The applicant's attention was drawn to publicity surrounding the

"29 clear day rule" concerning the period between service of the

notice of citation and the trial diet, arising from the case of

McDonald and others, in which the High Court gave an opinion on

10 July 1984.  This motion arose from the decision of the High Court

on 19 and 20 June 1984, when objection had been taken at the trial to

the failure to allow 29 clear days to the defendant between service of

the citation and the trial diet.

The Crown had objected that such a challenge to the validity of the

trial should have been made, pursuant to Section 76 of the 1975 Act,

by way of a preliminary diet before the trial diet.  Section 76

applies, inter alia, to matters "relating to the competency or

relevancy of the indictment or ... an objection such as is mentioned

in Section 108 (1) of the Act ... ".  Section 108 (1) provides that:

"no objection by the accused to the validity of the citation against

him, on the ground of any discrepancy between the record copy of the

indictment and the copy served on him, or on account of any error or

deficiency in such service copy, or in the notice of citation, shall

be competent except by leave of the court on cause shown, unless its

intention to raise the objection is stated in the notice under

Section 76 (1) (a) of this Act and no such discrepancy, error or

deficiency shall entitle the accused to object to plead to such

indictment unless the Sheriff shall be satisfied that the same tended

substantially to mislead and prejudice the accused."

The question which arose for determination in the McDonald case was

therefore whether the failure to allow 29 clear days resulted in the

absolute nullity of the proceedings, or whether it was a defect in the

citation and trial which could be waived by the accused; that is,

whether the words "any error or deficiency ... in the notice of

citation" in Section 108 (1) of the 1975 Act, relate only to errors

and deficiencies in the form of the notice of citation, or whether

they apply also to notices which are erroneous or defective because

they call upon the accused to appear and answer an indictment on a

date prior to the completion of the period prescribed by Section 75,

read with Section 111A, of the 1975 Act.

The High Court held that the defect in question was one which was

covered by Section 108 (1) of the 1975 Act.  Such an error on the face

of the citation rendered it invalid, but such invalidity did not have

the consequence that the proceedings as a whole were a nullity. The

citation was flawed by a failure to observe certain conditions, but it

did not cease to be a citation for that reason.  Accordingly, the

accused's failure to raise objection to the insufficiency of the time

between citation and trial diet prior to the latter as required by

Section 76 of the 1975 Act amounted to a waiver.

In the light of this decision, the applicant submitted supplementary

grounds of appeal on 18 October 1984, contending that his case was

distinguishable from that examined in the McDonald case. He submitted

that, in view of the terms of the warrant of citation issued

on 21 March 1984, fixing the date of the trial diet for 30 April 1984,

it was not possible for service to be effected upon him at all after

29 March 1984.  He contended that failure to serve an indictment is

fatal to any subsequent proceedings and cannot be waived by an

accused's appearance at the trial.  Consequently, his trial had been a

nullity and the Court had no authority to convict and sentence him.

The applicant's appeal was heard and dismissed on 8 November 1984,

when the High Court chose to follow their decision in the McDonald

case.  As a result, since he had failed to object to the period

between citation and trial diet prior to his trial, the applicant was

regarded as having waived that objection.  The Court stated that:

"as a matter of fact no objection was taken or was sought to be taken

at a preliminary diet.  No attempt was made to raise the question of

due notice of the trial diet before the appellant tended a plea and

what is even more important, bearing in mind that the issue of

prejudice is relevant, it was not even thought worthwhile to move for

an adjournment of the trial diet upon the ground of lack of time for

preparation.  In all these circumstances the point raised in the

additional ground is not open to the appellant and even if it is open

to the appellant it is unsound in the light of the decision in

McDonald and must be rejected".

After his conviction and pending the hearing of his appeal the

applicant applied to the High Court for interim liberation on

12 July 1984.  His application was refused, but in view of the

applicant's contention that he would be handicapped in researching for

his appeal if not released, the Court told the applicant that the

Court Clerk would be instructed to write to the prison authorities

about this matter.  The Clerk to the Court therefore wrote to the the

Director of Scottish Prisons on 16 July 1984 as follows:

"J.W. R.,APPELLANT v HER MAJESTYS ADVOCATE, RESPONDENT

The above named Appellant appeared before the High Court here on

12th July 1984 to argue his application for bail pending the hearing

of his substantive appeal against his conviction at Dundee Sheriff

Court on 23rd May 1984 - the appeal will probably be heard in

September 1984.

Their Lordships refused the application for bail; however R. during

his address to the Court indicated that he would find it difficult in

prison to gain access to the appropriate reference works to help him

prepare his appeal against conviction.  Although the Court refused

bail they told Mr. R. that they would instruct the Clerk of the

Appeal Court to write to the prison authorities about that particular

matter.

Accordingly, on the instructions of the Appeal Court, I am writing to

you to request that you do what you can to have R. given access to

such law reference works as are necessary for the preparation of his

appeal.

R. was sentenced on 23rd May 1984 at Edinburgh by the Lord Justice

Clerk to four years imprisonment and is presently at Perth prison.

Yours faithfully,".

The applicant wished to prepare his own appeal because it was unlikely

that he would receive legal aid, although he had applied for it.  His

solicitors had initially advised the applicant not to appeal and that

legal aid would probably not be available.  It appears however that an

application for legal aid was submitted at some stage but that it was

unsuccessful since counsel had failed to supply a supporting note.

The applicant contends that on 13 July 1986 he submitted a list of the

materials he required, consisting of four legal textbooks, three

statutes in force, and 13 case reports.  He had received none of the

materials requested by 26 July 1984 and consequently renewed his

application for interim liberation on the ground that he had

insufficient facilities for his legal research.  This renewed

application was rejected on 17 August 1984 because his earlier

application of 12 July had exhausted his rights of application.  The

Governor of Perth Prison wrote to the High Court on 30 July 1984

stating that the Prison had made considerable effort to satisfy the

applicant's requirements and had supplied certain material, while

trying to obtain more.  On 16 August 1984 Prison Headquarters informed

the Court that the applicant had requested the following books:

1.      Renton and Brown's Criminal Procedure 5th Edition (1983)

2.      Walker and Walker Law of Evidence in Scotland

3.      Hume's Criminal Law Vols.1 and 2

4.      The Criminal Justice (Scotland) Act 1980

5.      Copy of Amendments to the Acts of Adjournal

6.      Statute Law Revision (Scotland) Act 1906

7.      Statute Law Revision (Scotland) Act 1964

On 20 July 1984 the librarian officer at Perth Prison reported to the

Governor that the public libraries in Perth had been contacted in

respect of number 1, 2 and 3 but that they did not have them.

Similarly, the Procurator Fiscal 3 had been approached , but was not

in a position to lend his copies, since he needed them for his own

use.  The assistant Governor contacted the Justiciary Office, who

suggested that the Prison should buy numbers 1 and 2, but that number

3 was unobtainable.  This the Prison did, and numbers 1 and 2 were

then lent to the applicant before 16 August 1984, together with the

Prison's copy of number 4.  Since the latter was in constant use, the

applicant was only able to borrow it overnight, but the Prison has no

record that the applicant objected to this arrangement.  In addition

the Prison supplied the applicant with the opinion of the High Court

of Justiciary in two cases directly relevant to his appeal, Swift and

McDonald.

In an effort to acquire the remainder of the legal texts necessary for

the preparation of his appeal the applicant wrote several letters to

the Clerk of Justiciary, to which he did not receive replies.  He then

petitioned the Nobile Officium of the High Court on 4 September 1984.

However, a reply sent to the Governor of Perth Prison and dated

7 September 1984 said that this petition was not acceptable.  The

applicant requested a copy of this letter and was refused.

At the beginning of September 1984 the applicant was assured by a new

Assistant Governor of the prison that the matter had been referred to

the Clerk of Justiciary, to whom the applicant again wrote without

receiving a reply.  Since he had still not received all the material

requested the applicant petitioned the Secretary of State on

4 October 1984.  He received assurances from the Governor and the

Assistant Governor of the Prison that something would be done, but he

had still received no further legal materials by 1 November 1984.  He

petitioned the Secretary of State once more on that date, but he had

received no reply prior to the hearing of his appeal on 8 November.

The applicant further petitioned the Secretary of State on 14 and

27 November and 12 December 1984 requesting a referral of his case

back to the Appeal Court or the exercise of the prerogative of mercy.

These various petitions were refused on 23 January 1985.  A further

petition dated 28 January 1985 requesting a reconsideration of the

matter has not yet been answered.

On 8 January 1985 the applicant received a letter dated November 1984

in which the Secretary of State refused his petitions concerning the

legal materials he had sought for his appeal.  The applicant wrote to

the Secretary of State on 10 January 1985 enquiring when the reply was

sent and after what sort of "discussions" (as mentioned in the letter)

the decision to refuse him access to legal texts had been taken.  No

reply has yet been received.

COMPLAINTS

The applicant complains of breaches of Articles 5 and 6 (Art. 5,

art. 6) of the Convention.

As regards Article 5 (Art. 5) the applicant claims that his

imprisonment following conviction by the Dundee Sheriff's Court on

30 April 1984 does not satisfy any of the separate requirements of

Article 5 (Art. 5).  He was not lawfully detained after conviction by

a competent court (Article 5 para. 1 (a) (Art. 5-1-a)) because the

effect of the incorrect service of the indictment and warrant of

citation was to render the subsequent proceedings null and void.

As regards Article 6 (Art. 6) he argues that the fact that since the

service of the indictment and the warrant of citation upon him failed

to provide him with the statutory minimum period before his trial,

this amounts to a breach of Article 6 para. 3 (a) and (b) (Art. 6-3-a,

art. 6-3-b).  Moreover, the failure of the prison authorities to

provide him with the various legal texts and case reports requested by

him for the preparation of his appeal is alleged to be a breach of

Article 6 para. 3 (b) (Art. 6-3-b).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 November 1984 and registered on

18 February 1985.

On 6 May 1985, the Commission decided to bring the application to the

notice of the respondent Government in respect of the applicant's

complaints under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

and to invite them to submit written observations on its admissibility

and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.

The Government's observations were submitted on 10 September 1985.

The applicant replied on 15 October 1985, but following the

appointment of a lawyer to represent him, further observations were

submitted on 1 May 1986.

SUBMISSIONS OF THE PARTIES

A.      THE RESPONDENT GOVERNMENT

1.      The facts

The applicant has produced a list of textbooks, statutes and case

reports which he says he submitted to the prison authorities on

13 July 1984.  The Government have no record of receiving such list and

submit that if one had been submitted, it would have been preserved

and acted upon.  So far as the Government were aware, any requests for

legal materials were made informally and the prison authorities went

to some trouble to secure the books which were requested.

The applicant states that, at the appeal hearing on 8 November 1984,

he complained that he had not been provided with sufficient legal

materials.  The Government submit that the Opinion of the Court does

not indicate that he complained of this or requested an adjournment on

this account.  The Clerk of the Court and the Crown Office have no

recollection of his complaining or asking for an adjournment on that

account.  The possibility of applying for such an adjournment had been

drawn to the applicant's attention in the letter of 4 September 1984

from the Clerk of the Court.

The Government make the following comments regarding the materials

requested by the applicant.  Renton and Brown is the standard textbook

on criminal procedure and Walker and Walker is the standard work on

evidence.  Hume's Criminal Law is one of the "institutional writings"

which first set out Scottish criminal law systematically.  It was

published in 1797 and had several editions in the 19th century.  While

it is very authoritative, its relevance to present day evidence and

procedure is limited and unlikely to provide any relevant information

which could not be obtained from Renton and Brown or Walker and

Walker.  The Criminal Justice (Scotland) Act 1980 contains, among

other matters, provisions in respect of evidence and procedure.

Amendments to the Acts of Adjournal are amendments to the rules of

procedure of the criminal court.  In fact, procedure in solemn

proceedings is generally set out in the Criminal Procedure (Scotland)

Act 1975 itself.  Updated texts of any relevant acts of adjournal are

set out in Renton and Brown.  The Statute Law Revision Acts are Acts

repealing obsolete statutes.  Those listed appear to have no possible

relevance to this case.  One is almost entirely repealed itself and

the other repeals Acts of the old Scottish Parliament before 1707.

2.      Relevant domestic law and practice

The Government state that there is no specific statutory or case-law

on the subject of the rights of prisoners to have access to legal

materials in preparing for court proceedings.

However, Scots Law recognises the general principle that a person is

entitled to a fair hearing before the court, including an adequate

opportunity to prepare his case.  A criminal court can adjourn a

hearing, on the motion of a party, if they consider this desirable in

the interests of justice.  This can be done when the applicant has not

had an adequate opportunity to prepare his case, for instance if he

has had insufficient time or certain witnesses or documents have not

been available.  In principle, this remedy should also be available

where a person has not had an adequate opportunity to prepare his case

because he has been unable to obtain access to legal materials which

he requires.

The Prison (Scotland) Rules 1952, and the Standing Orders giving

instructions on implementation of the rules, include provisions

regarding prisoners who are appealing against conviction or sentence,

and the facilities to be made available to them.  In particular,

Rule 132 para. 1 provides:

"An appellant shall be allowed all reasonable facilities, including

the provision of writing materials, for communicating by letter with

his relatives and friends or for conducting correspondence or

preparing notes in connection with his appeal".

This provision is repeated in Standing Order Kb23 5 (a). However,

there is nothing specifically in rules and standing orders about the

provision of legal materials.  This simply reflects the infrequency of

requests for legal materials by appellants.

3.      Admissibility and merits

The Government submit that the applicant was in fact given adequate

facilities for the preparation of his defence.  The word "facilities"

is qualified by the adjective "adequate" and it is clear from the

Commission's case-law that the facilities which must be granted are

restricted to those which assist or may assist him in the preparation

of his defence (Jespers v. Belgium, Application No. 8403/78, Comm.

Rep. 14.12.81, D.R. 27 p. 61).

The obligation under Article 6 para. 3 (b) (Art. 6-3-b) to ensure the

right of a person charged to have facilities for the preparation of

his defence does not require a Government itself to provide a person

who is at liberty with whatever legal materials he may wish.  Any

layman may experience difficulties of a practical nature in having

access to certain legal authorities and textbooks.  The fact that a

person is in prison and thus not at liberty to gather his own

materials cannot impose upon the Government any greater obligation

than to provide such materials as a person could reasonably have

acquired had he been at liberty, having regard to the local

circumstances.  The obligation should, moreover, only relate to

materials which are relevant and necessary to the case.  This

obligaton the Government submit that it has met.

The Government submit that the applicant was supplied with up to date

editions of the standard textbooks on court procedure and evidence. An

examination of the grounds of appeal lodged by the applicant reveals

that many of the grounds consist of allegations that various events

prejudiced the fairness of his trial and do not raise difficult

questions of law requiring much research.  Insofar as his appeal

raised questions of evidence or procedure, the Government submit that

the availability of Walker and Walker and Renton and Brown would be

adequate.  In respect of the most difficult point raised in his

grounds of appeal, namely, whether the deficiency of the service of

the Court invalidated the whole proceedings, the applicant had been

supplied with the opinion of the Court of Criminal Appeal in McDonald,

which reviewed the relevant authorities and dealt with facts

essentially indistinguishable from those of the applicant's case.  The

Government argues that further legal research would have been

pointless.

The Government also submit that the applicant has failed to exhaust

domestic remedies in respect of this complaint.  It would have been

possible for the applicant to ask for an adjournment of the appeal

proceedings on the grounds that he had not had an adequate opportunity

to prepare his case and the Court could have granted an adjournment if

satisfied that that was desirable in the interests of justice.  The

letter from the Clerk of Court to the Prison Governor, dated

7 September 1984, pointed out that this was the appropriate means.  The

Government submit that it is not established that at the appeal the

applicant asked for an adjournment or complained about lack of

opportunity to prepare his case.

For these reasons the Government request the Commission to declare

that the applicant's complaint under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention is manifestly ill-founded or that there

has been no breach of the Convention.

B.      THE APPLICANT

1.      The facts

The applicant contends that he made a formal request for materials by

presenting a list in writing on 13 July 1984 to the prison authorities

and denies that the list of requirements acknowledged by the

respondent Government is an accurate account of the materials

requested.

The applicant also states that there is no indication that the prison

authorities attempted to obtain the required texts from any

specialist, court or university libraries.

The applicant contends that he did complain to the Appeal Court

concerning his lack of access to legal materials in his additional

grounds of appeal and that he made a verbal submission on the point

but was told by the Court to be silent.

The applicant admits that Renton and Brown and Walker and Walker are

standard textbooks, but states that they contain many case references

and footnotes; without access to the material in these footnotes, they

were inadequate in themselves in preparing the applicant's appeal.

The applicant states that Hume's Criminal Law is a very authoritative

text and that access to the various statutes requested was essential.

He contends that his requests were for the minimum required for such

an appeal and that none of his requests lacked relevance.

2.      Relevant domestic law and practice

The applicant complained both orally and in writing to the Court of

Appeal that he had been denied access to necessary legal texts and did

request an adjournment.  These applicatons were refused.

Rule 132 para. 1 of the Prison (Scotland) Rules 1952 requires a

prisoner to be allowed all reasonable facilities in the preparation of

his appeal.  The applicant submits that the respondent Government did

not comply with this rule and that omission of a specific provision

concerning access to legal materials is a serious defect in the Rules.

3.      Admissibility and merits

A person in prison is not at liberty to gather his own materials and

there is accordingly a greater obligation on the respondent Government

to provide necessary materials than if he was at liberty.

The applicant requested four textbooks but was supplied with one only.

The crucial statute he requested was available for one night only.  He

was not supplied with any of the thirteen precedents requested.  All

of the applicant's grounds of appeal required substantial research and

reading for their preparation.  The prison authorities could have

obtained the relevant materials with little effort.  The applicant's

appeal included a ground of appeal not covered by the opinion in

McDonald and on which McDonald could have been distinguished.  He

required further materials to research this point but was denied them.

It was perhaps for this reason that the Court ignored this point in

their opinion.

The applicant submits that he has exhausted domestic remedies, since

he did request an adjournment on the grounds that he had not had an

adequate opportunity to prepare his case.

THE LAW

1.      The applicant complains that he is  not lawfully detained

since the incorrect service of the indictment and warrant of citation

rendered null and void the proceedings in which he was convicted and

sentenced.

Article 5 (Art. 5) of the Convention provides inter alia that:

"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, 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 constant

case-law (see e.g. decisions on the admissibility of applications

No. 458/59, Dec. 19.3.60, Yearbook 3 pp. 222, 236 and No. 1140/61,

Dec. 19.12.61, Collection of Decisions 8 pp. 57, 62).

The Commission recalls in the present case that the applicant raised

the argument that his trial was null and void in the appeal

proceedings before the High Court of the Justiciary.  The High Court

however followed its previous decision in the McDonald case which held

that such errors did not result in the absolute nullity of proceedings

and found that since the applicant had failed to object to the errors

prior to his trial, he must be regarded as having waived that

objection.  This interpretation is a matter of Scottish law.

Although the applicant's alternative interpretation which he urged in

the course of his appeal might have some force, it is not the case

that the High Court either ignored or misunderstood his line of

argument but that the Court preferred to follow the line of reasoning

adopted in the case of McDonald.

The Commission concludes therefore that this complaint fails to

disclose any appearance of a violation of Article 5 (Art. 5) 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 that the failure to allow him the

statutory minimum time between service of the indictment and his trial

constituted a violation of Article 6 para. 3 (a) and (b) (Art. 6-3-a,

art. 6-3-b) of the Convention.

Article 6 para. 3 (a) and (b) (Art. 6-3-a, art. 6-3-b) of the

Convention provide that:

"3.  Everyone charged with a criminal offence has the following

minimum rights:

(a) to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his

defence;...".

The Commission recalls however that the indictment was served on the

applicant on 30 March 1984 and that his trial began on 30 April 1984.

While this gave the applicant less than the "29 clear days" notice

required by statute, it does not appear from the facts of the

application that the applicant was not informed in detail of the

nature and cause of the charges against him or that he had

insufficient time to prepare his defence.  The Commission notes that

the applicant did not complain in the trial proceedings that he had

had insufficient time or request an adjournment in order to gain more

time.  The Commission accordingly concludes that on the facts of the

present application there is no appearance of a violation of

Article 6 para. 3 (a) or (b) (Art. 6-3-a, art. 6-3-b) of the

Convention.

It follows that this part of the application must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.      The applicant also complains that the failure of the prison

authorities to provide him with various legal texts and materials

deprived him of adequate facilities in the preparation of his appeal.

The Commission must first consider whether Article 6 (Art. 6) of the

Convention is applicable to the applicant's hearing before the Court

of Appeal.

Article 6 para. 1 (Art. 6-1) provides:

"1.     In the determination of his civil rights and obligations or 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.  Judgment shall be pronounced

publicly but the press and public may be excluded from all or part of

the trial in the interests of morals, public order or national

security in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so require, or to

the extent strictly necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests of

justice".

Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides:

"3.     Everyone charged with a criminal offence has the following

minimum rights:

b)  to have adequate time and facilities for the preparation of his

defence;...".

The Commission recalls that in its judgment in the Delcourt case, the

European Court of Human Rights pointed out that Article 6 para. 1

(Art. 6-1) of the Convention does not compel the Contracting States to

set up courts of appeal or of cassation but that, nevertheless, a

State which does institute such courts is required to ensure that

persons amenable to the law shall enjoy before these courts the

fundamental guarantees contained in Article 6 (Art. 6) (Eur. Court H.R.

Delcourt judgment, Series A No. 11 para. 25).

Thus, the Commission considers that, although Article 6 (Art. 6) does

not guarantee an appeal in criminal proceedings, where the opportunity

to lodge an appeal in regard to the determination of a criminal charge

is provided under domestic law, the guarantees of Article 6 (Art. 6)

continue to apply to the appeal proceedings, since those proceedings

form part of the whole proceedings which determine the criminal charge

at issue (Application No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).

The applicant contends that he requested a number of legal textbooks,

statutes and case-precedents in order to enable him to prepare for his

appeal.  It appears from the submissions of the parties that the

applicant was in fact supplied with two legal textbooks, two

case-precedents and given access overnight to the prison copy of a

statute.  The applicant complains that these were not sufficient for

his purposes since he required access to other materials in order to

research particular grounds of appeal.  He further complains that

while the prison authorities may have made some efforts to locate

materials, they did not take all possible steps, for example, they do

not appear to have approached university or specialist libraries.

However, in Article 6 para. 3 (b) (Art. 6-3-b) of the Convention, the

word "facilities" is qualified by the adjective "adequate".  The

Commission recalls its constant case-law to the effect that the

facilities which must be granted to the accused are restricted to

those which assist or may assist him in the preparation of his defence

(see e.g. Jespers v. Belgium, Comm. Report 14.12.81, para. 57,

D.R. 27 p. 61).

The Commission also recalls that the specific guarantees laid down in

Article 6 para. 3 (Art. 6-3) of the Convention cannot be looked at in

isolation.

"They exemplify the notion of fair trial in respect of typical

procedural situations which arise in criminal cases, but their

intrinsic aim is always to ensure, or contribute to ensuring, the

fairness of the criminal proceedings as a whole.  The guarantees

enshrined in Article 6 para. 3 (Art. 6-3) are therefore not an aim in

themselves, and they must accordingly be interpreted in the light of

the function which they have in the overall context of the

proceedings" (Can v. Austria, Comm. Report, 12.7.84).

The Commission must therefore also consider the applicant's complaints

under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention in light of

the overriding purpose of fairness laid down in Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission recalls that the applicant was detained in prison prior

to his appeal, which prevented him from searching out his own legal

materials for his appeal.  The Commission notes that the High Court of

Justiciary instructed the prison authorities to do what they could to

give the applicant access to such law reference works as were

necessary for the preparation of his appeal.  The applicant was

subsequently supplied with a number of materials, but not all of the

works which he requested.  The Commission is of the opinion however

that there must be acknowledged to be practical limits to the steps

which the prison authorities could reasonably be expected to undertake

to find materials for the applicant's research.  The Commission

recalls in this respect that the prison contacted the local libraries,

the Procurator Fiscal and the Justiciary Office and that they took the

step of buying two textbooks for the applicant's use.

The Commission also recalls that the applicant was nonetheless able to

argue his points of appeal before the Court at his hearing on

18 October 1984 and to raise the issue of the possible nullity of

proceedings for the consideration of the Court.  The Court stated in

its Opinion that the issue of nullity had been set out at considerable

length in the applicant's grounds of appeal and had been developed

further before them in oral submissions; the Court summarised his

arguments in their decision but held that they were bound to follow

the leading case of McDonald.

The Commission is therefore of the opinion that on an evaluation of

the proceedings as a whole it has not been established that the

applicant was not given adequate facilities for the preparation of his

appeal or that he did not receive a fair hearing before the appeal

court as a result of any lack of legal materials for his research.  An

examination of the proceedings as a whole accordingly does not

disclose any appearance of a violation of Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention read in conjunction with 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.

For these reasons, the Commission

DECLARE THE APPLICATION INADMISSIBLE.

Deputy Secretary                        President

to the Commission                       of the Commission

(J. RAYMOND)                            (C.A. NØRGAARD)