The European Commission of Human Rights sitting in private on

12 May 1986, the following members being present:

              MM. C. A. NØRGAARD, President

                  G. SPERDUTI

                  J. A. FROWEIN

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  G. TENEKIDES

                  S. TRECHSEL

                  B. KIERNAN

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Mrs. G. H. THUNE

              Sir Basil HALL

              Mr. H. C. KRÜGER Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 1 March 1983 by

C. against the United Kingdom and registered on

1 June 1983 under file No. 10427/83;

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

Procedure of the Commission;

Having regard to:

-       the Commission's decision of 2 July 1984 to bring the

application to the notice of the respondent Government and to request

them to provide certain information,

-       the information provided by the respondent Government on

27 September 1984, and the comments thereon submitted by the applicant

on 6 November 1984;

-       the Commission's decision of 8 May 1985 to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits;

-       the observations submitted by the respondent Government on

9 December 1985 and the observations in reply submitted by the applicant

on 4 December 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts as they have been submitted by the applicant, an Indian

citizen born in 1935, and represented before the Commission by

Messrs Field and Sons, Solicitors, of Leamington Spa, may be

summarised as follows:

The applicant enlisted in the Indian Army on 15 April 1955 as a clerk

for a term of ten years' regular service, followed by ten years'

reserved service.  On 25 September 1971 he was transferred from India

to the Office of the High Commission of India in London.

In August 1975, whilst still serving with the Indian High Commission,

the applicant was informed that he was being posted back to India.

The applicant was most reluctant to accept this posting, owing to the

health of his wife, who suffered from asthma and was undergoing

medical treatment, and the educational position of his daughter, who

was aged 17, and was taking her 'A' Level examinations ending her

schooling.  Furthermore the applicant was in the process of buying a

property in the United Kingdom.

The applicant was due to fly to India on 26 September 1975. On

25 September 1975 he wrote a letter to the Chief of Army Staff at Army

Headquarters, New Delhi, expressing his dissatisfaction with his

treatment and his posting back to India, which concluded with the

words:

"in view of the above circumstances, I hereby tender my resignation

for premature retirement with immediate effect."

Following 25 September 1975 the applicant did not return to work at

the High Commission, although he remained living at the same address

as he had previously occupied for some time.  Thereafter he moved to

Birmingham where he took up other employment.  The applicant had

received a letter of 15 December 1971 from the Home Office concerning

his immigration status and eligibility to seek employment in the

following terms:

"With reference to your recent enquiry, I am writing to say that no

conditions are attached to your stay in the United Kingdom and you are

free to take employment. Yours faithfully,"

The applicant considered that he was therefore free from immigration

control and free to take up employment on his purported resignation

from the Indian Army.

On 19 February 1981 the applicant was visited by the United Kingdom

police and was arrested as a suspected deserter from the Indian Army

under Section 186 Army Act 1955 as applied by Section 13 (1) Visiting

Forces Act 1952, as amended by the Revision of the Army and Air Force

Acts (Transitional Provisions) Act 1955 ("the 1952 Act").

On 2 October 1981 the applicant appeared before the Warwick

Magistrates' Court in Leamington Spa, when the Magistrates made an

order committing the applicant to prison pending his delivery into the

custody of the Indian authorities under Section 187 Army Act 1955 as

applied by Section 13 (1) of the 1952 Act.

The applicant applied for a writ of habeas corpus before the High

Court on 22 February 1982 on the grounds that to enforce his removal

from the United Kingdom under the terms of the 1952 Act, more than

five years after his alleged desertion and following his purported

resignation, would be excessive and contrary to natural justice.  The

High Court refused the applicant's application on 5 October 1982, and

his application for leave to appeal to the House of Lords was refused

on 22 December 1982.

The applicant was then delivered into the custody of the Indian

authorities and removed from the United Kingdom to India on

29 December 1982.  He was tried and convicted in India and sentenced to

two months' "rigorous imprisonment".

COMPLAINTS

The applicant complains of his removal from the United Kingdom

pursuant to the terms of the 1952 Act, which took place after an

inexplicable delay of five years during which he had established

himself in the United Kingdom with his family and notwithstanding his

purported resignation from the Indian Army.

He contends that the delay between his alleged desertion and his

arrest, coupled with the delay before the Indian courts, together with

the disturbance of the applicant's life in the United Kingdom, his

uprooting from his home, family and business, and his brisk removal to

India, together constitute inhuman and degrading treatment contrary to

Article 3 (Art. 3) and amount to an interference with his private and

family life and his home contrary to Article 8 (Art. 8).

The applicant also complains that he was deprived of his liberty in

circumstances other than those set out in Article 5 (1)(a) - (f)

(Art. 5-1-a, art. 5-1-b, art. 5-1-c, art. 5-1-d, art. 5-1-e,

art. 5-1-f) since the present case did not concern extradition, as is

clearly recognised by Volume 18, para. 201 Halsbury's Laws of England,

Fourth Edition, but a special procedure under the 1952 Act.  Normal

extradition proceedings in the United Kingdom have safeguards which

the 1952 Act lacks, in particular that the Secretary of State has a

discretion not to extradite, notwithstanding a committal order by the

magistrates, and the delay between the alleged incident justifying

extradition and the time of implementation of the requested

extradition is a legitimate factor for the Secretary of State to take

into account (para. 283 Volume 18 Halsbury's Laws supra).  By contrast

the Secretary of State has no power to intervene in the procedure

under the 1952 Act.

The applicant further invokes Article 6 para. 1 (Art. 6-1) in

relation to the delay between his alleged desertion and his arrest,

and the delay before the Indian courts.  In addition, the applicant

was denied the presumption of innocence in relation to the charge of

being a deserter from the Indian Army by virtue of the operation of

Section 14 (b) of the 1952 Act which provides that a certificate

issued by an army officer of the force from which an alleged deserter

is said to have deserted shall be sufficient proof that he is indeed a

deserter unless the contrary is proved.

The applicant further complains that he had no remedy before a

national authority in the United Kingdom in respect of the violations

of the Convention set out above, in which respect he invokes

Article 13 of the Convention (Art. 13).

Finally, the applicant invokes Article 14 of the Convention (Art. 14)

in relation to the selective operation of the 1952 Act, which applies

only to persons of a particular status, i.e. alleged deserters or

absentees from the forces of the countries referred to in Section 1 of

the 1952 Act.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 March 1983 and registered on

1 June 1983.  In the proceedings before the Commission the applicant is

represented by Messrs.  Field & Sons, Solicitors of 42 Warwick Street,

Leamington Spa.

The Commission commenced its examination of the admissibility of the

application on 2 July 1984 and decided to bring the application to the

notice of the respondent Government pursuant to Rule 42 (2)(a) of its

Rules of Procedure and to request the respondent Government to submit

information before 28 September 1984.

The respondent Government submitted the information requested on

27 September 1984, and the applicant's representatives replied to this

information on 6 November 1984.

The Commission resumed its examination of the admissibility of the

application on 8 May 1985 and decided to invite the respondent

Government, pursuant to Rule 42 (2)(b) of its Rules of Procedure, to

submit written observations on the admissibility and merits of the

application, with particular reference to Articles 8 and 13 thereof

(Art. 8, art. 13). The time-limit for the submission of these

observations was 2 August 1985.

The respondent Government requested and were granted an extension of

this time-limit until 13 September 1985.  Their observations were

submitted on 10 September 1985.

The applicant's representatives were invited to make any observations

in reply before 31 October 1985.  They requested and were granted an

extension until 13 December 1985.  Their observations were submitted

on 4 December 1985.

SUBMISSIONS OF THE PARTIES

A.      Submissions of the respondent Government

1.      The relevant facts

The respondent Government submit that the applicant is a national of

India, born in 1935, who joined the Indian army on 15 April 1955, for

an original engagement of 10 years followed by a further 10 years.  He

was posted to London as a member of the staff of the Military Advisers

at the Indian High Commission in September 1971, and was thereby

exempt from immigration control by reason of this status, initially by

virtue of Article 1 (c) of the Commonwealth Immigrants (Control of

Immigration) Exemption Order 1965, and subsequently under Section 8

(3) of the Immigration Act 1971.

In August 1975 the applicant who was still serving with the Indian

High Commission, was informed that he was to be posted back to India.

He was reluctant to return to India, and claims to have sent a letter

to the Chief of Army Staff at Army Headquarters in New Delhi in which

he submitted his resignation for premature retirement with immediate

effect.  In the letter, which the respondent Government submit may not

have reached the Indian Army authorities, the applicant described

himself as "a bona fide" soldier.

On 10 October 1975 the Indian High Commission wrote to the Home Office

advising them that the applicant had been relieved of his duties in

London on 20 September 1975, but had not left London for India and

that "as a member of the services personnel of the Government of India

... he cannot take up employment elsewhere".  The Indian authorities

requested that the applicant should not be given exemption from

control under section 8(3) Immigration Act 1971.  The applicant

subsequently left his address in London and moved to Birmingham, and

at the time of his arrest as a deserter from the Indian forces on

19 February 1981 he was running a public house at Leamington Spa.

The respondent Government contend that from 20 September 1975 when the

applicant's duties were terminated, until his removal to India, the

applicant was in the United Kingdom without the leave required under

the Immigration Act 1971.  They submit that the Home Office's letter

of 15 December 1971 to the applicant must be read as relating to the

applicant's circumstances while employed at the Indian High Commission

and not in a more general manner.

On 2 October 1981 the Magistrate sitting at Leamington Spa committed

the applicant to prison until such time as he might be delivered into

the custody of the Indian military authorities under Section 187 of

the Army Act 1955 as applied by Section 13 of the 1952 Act.  On

5 October 1981 the applicant applied for habeas corpus to secure his

release from prison, since he challenged the basis upon which his

committal had been ordered.  The matter was adjourned, and the

applicant granted bail, and the matter was adjourned again on

22 February 1982, finally coming before the Divisional Court on

5 October 1982, when the challenge to the lawfulness of the applicant's

detention was rejected.  The applicant sought leave to appeal to the

House of Lords, which refused such leave on 22 December 1982.  He was

subsequently delivered into the custody of the Indian military

authorities and removed to India on 29 December 1982.  On 25 August

1983 the Warwickshire police were informed that the applicant had been

dismissed from the Indian Army and awarded "rigorous imprisonment" for

two months.

2.      Domestic law and practice

Section 13 (1) of the 1952 Act provides for the apprehension, custody

and delivery into the custody of its military authorities of deserters

and absentees without leave from any force of a country to which the

Act applies.  The countries in question are set out in Section 1

(1)(a) of the 1952 Act, and include India.  Despite its name, the Act

applies even to circumstances where the force from which the

serviceman has deserted or absented himself is not a visiting force

stationed in the United Kingdom.  The Act originated from the

reenactment of legislation regulating the arrest and surrender of

servicemen from the forces of members of the British Commonwealth

which had Dominion status and was subsequently extended to the armed

forces of certain other countries.

The powers under the 1952 Act are exercisable, in accordance with

Section 13 (2), where a specific or general request has been made by

the appropriate authorities of the country to whose force the deserter

belongs to apprehend the deserter.  Such a request must be certified

in accordance with Section 14 of the 1952 Act, both by the deserter's

commanding officer, on the question of desertion, and by the Ministry

of Defence.  When such a request is certified by the relevant

authorities of the requesting country, usually the High Commission or

Embassy, they inform the British police direct of the deserter by

providing the certificate specified in Section 14 (b) of the 1952 Act.

When found, the deserter is arrested and brought before a court of

summary jurisdiction, which, if satisfied that he is a deserter, will

order him to be handed over to the authorities in the United Kingdom

of the country from whose armed forces he has deserted. An appeal on a

question of law may be made by case stated, or judicial review may be

sought of the magistrates' decision.

On 21 August 1974 the Defence Secretary to the Government of India

made a General Request for the apprehension of any Indian deserters

found in the United Kingdom and the request was authenticated under

Section 14 (a) of the 1952 Act by the Secretary of the Defence Council

in the British Ministry of Defence on 27 May 1975.

Where an alleged deserter does not admit that he is illegally absent

from the armed forces of his country, the magistrates' court must be

satisfied beyond a reasonable doubt that the person was subject to

military law.   In addition the magistrates must be satisfied that

there is sufficient evidence of illegal absence from the armed forces

for it to be proper to return the person to trial by his military

authorities.  The question whether the person was subject to military

law, if disputed, would not be answered merely by reference to the

certificate of the military authorities provided for under Section 14

(b) of the 1952 Act.  Such a certificate would be sufficient evidence,

however, that a person was illegally absent from the armed forces,

subject to proof to the contrary (R. v. Tottenham Magistrates' Court,

Ex parte Williams (1982) 2 All E.R. 705).

3.      Admissibility and merits

With regard to the question whether the applicant was properly

considered to be subject to military law at the time of his alleged

desertion in view of the apparent expiry of his commission with the

Indian Army on 25 September 1975, the respondent Government refer to

the well-established practice that a serviceman remains subject to the

jurisdiction of his own service authorities wherever he is serving. In

their submission it is for the military law of the country concerned

to determine the time of expiry of the serviceman's commission.  This

principle is adopted by the 1952 Act.

In the present case the Indian military authorities continued to

regard the applicant as subject to military law on the date when he

purported to terminate his service; this is evident from the

certificate issued under Section 14 (b) of the 1952 Act, and from the

subsequent decision of the Indian courts to dismiss the applicant from

the service.  The applicant also appears to have considered himself as

still subject to military law, when he wrote to resign "for premature

retirement"; in his letter of resignation, he described himself as a

bona fide soldier.  He does not appear to have raised in the courts

any question regarding the expiry of his commission by a effluxion of

time.  It may be, but this is a matter of Indian law on which the

Government do not seek to speculate, that a serviceman remains subject

to military law on expiry of his original engagement until he is

officially discharged.

Article 3 (Art. 3)

The respondent Government submit that no issue is raised under

Article 3 (Art. 3) in respect of the applicant's allegations

concerning his arrest and surrender to the Indian authorities, and his

removal from the United Kingdom to India.  Such treatment as may have

arisen does not attain the seriousness envisaged by Article 3

(Art. 3).

Article 5 (Art. 5)

The respondent Government contend that the applicant's arrest and

detention were authorised under Article 5 para. 1 (f) (Art. 5-1-f),

i.e. his arrest and detention was lawful as that of a person "against

whom action is being taken with a view to deportation or extradition".

Although the procedure under the 1952 Act differs in various respects

from the procedure under United Kingdom law for the extradition of a

criminal to a foreign State the procedure is sufficiently analogous to

extradition to fall under the terms of Article 5 para. 1 (f)

(Art. 5-1-f). The respondent Government refer in this respect to the

Commission's decision on the admissibility of Application No. 8971/80,

Dec. 5.5.81, unpublished, where the Commission held that that

applicant had in effect been extradited under the special procedures

envisaged under the 1952 Act.

Article 6 (Art. 6)

Insofar as the applicant complains that the delays before his arrest,

and subsequent delays before the Indian courts are contrary to the

requirement of a hearing within a reasonable time, the respondent

Government point out that these delays are not their responsibility,

nor within their control.  They are the consequence of the applicant's

decision to purport to terminate his service in the Indian Army while

serving in the United Kingdom, and thereafter to conceal his

whereabouts from the military authorities of his country.

With regard to the applicant's complaint under Article 6 para. 2 of

the Convention (Art. 6-2), the respondent Government consider that the

requirement for innocence to be presumed until there is a finding of

guilt applies to the procedure for the determination of a criminal

charge.  By contrast, the proceedings under the 1952 Act did not

involve the determination of such a charge, since the object of the

procedure is to provide for the person concerned to be brought before

the competent criminal court.  The fact that the alleged deserter

appears before a magistrates' court before he is delivered into the

custody of his service authorities is a significant protection for

him, but neither domestic law, nor the Convention, requires that he is

entitled at that stage to all the protection of the criminal law,

since he is not, at that stage, being tried for a criminal offence.

Under Section 14 (b) of the 1952 Act, the certificate from the

appropriate authority of the deserter's country constitutes

"sufficient evidence" that the person named and described in it was a

deserter or absentee without leave.  The rule in the Ex parte Williams

case (referred to above) is that the magistrates have to consider

whether the evidence given by the arrested person is sufficiently

credible to disprove the effect of illegal absence which has been

certified, or whether, taking the evidence as a whole, there is a case

fit for trial by a military tribunal of the forces concerned.  This

rule does not displace the presumption of innocence, which will

doubtless apply in the substantive proceedings before the appropriate

service tribunal.  Hence the respondent Government contend that

Article 6 (Art. 6) is inapplicable to the present application.

Article 8 (Art. 8)

The respondent Government refer to the Commission's case-law

concerning the exclusion of a person from a country where close

members of his family reside, and in particular the reliance in that

case-law upon the factual situation of each case.  A relevant factor

is whether the spouse and other members of the family of the person

removed may be expected to follow the person removed out of the United

Kingdom.  In the present case the applicant and his wife came from

India to the United Kingdom in 1971, expecting a posting of three

years.  A return to India would be the natural consequence of the

applicant's purported resignation from the Indian army.  Even if there

were personal reasons for any member of the applicant's legal family

being reluctant to follow him to India, there could be no legal or

political obstacles to them doing so.  The Government therefore submit

that there has been no interference with the applicant's family life.

This view is reinforced by the particular facts of the present case,

since the respondent Government understand that the applicant left his

wife in about 1978, and lived with other women since then. In these

circumstances the Government contend that no issue arises under

Article 8 (Art. 8).

Nevertheless, should the Commission consider that an interference with

the applicant's rights under Article 8 (Art. 8) arose, the respondent

Government rely on the Commission's decision on the admissibility of

Application No. 8971/80 (supra).  In accordance with that case, if the

involuntary return of the applicant to India and the consequent

disruption of his family life constituted an interference with

Article 8 para. 1 of the Convention (Art. 8-1), the reason for his

return is normal and justifiable as necessary in a democratic society

for the prevention of crime.  It appears that the applicant enlisted

in the Indian army of his own free will and his return to India is due

to a reason envisaged by Article 5 para. 1 f) of the Convention

(Art. 5-1-f). Hence any  interference is justifiable under

Article 8 para. 2 of the Convention (Art. 8-2).

Article 13 (Art. 13)

In view of the principles recognised by the Court in the case of

Silver and others (Eur. Court H.R., judgment of 25.3.83, Series A,

No. 61, para. 113), Article 13 (Art. 13) requires that the applicant

should have a remedy before a national authority in respect of an

arguable claim to be a victim of a violation of the rights set forth

in the Convention.  The respondent Government consider that the

applicant had no arguable claim under Article 8 of the Convention

(Art. 8), since there was no interference with his family life.

Alternatively, since the same question had been disposed of by the

Commission in its decision on the admissibility of Application

No. 8971/80 (supra), where the Commission concluded that the complaint

did not "disclose any appearance of a violation of Article 8 of the

Convention (Art. 8), and was manifestly ill-founded", it cannot now be

said that the present applicant, in almost identical circumstances,

can have a "arguable claim" under the same Article (Art. 8).  Hence no

issue arises under Article 13 (Art. 13).

If, in the alternative, the Commission considers that the applicant

has an arguable claim and that Article 13 (Art. 13) is therefore

applicable, the applicant had the remedy of habeas corpus available to

him, which he pursued.  The Divisional Court not only considered

whether the Magistrates' Court had adopted the correct approach in

interpreting the 1952 Act, but recognised the possible existence of a

discretion to refuse to return under the 1952 Act "in circumstances

where it is contrary to natural justice to do so".

The Divisional Court went on:

"There might be cases in which some shocking revolution had taken

place in a country to which we were bound by a treaty, which would

lead the court to suppose that an applicant surrendered to the

military authorities of the revolutionary party could not possibly

receive justice, but this is not such a case.  There are no grounds

whatever for supposing that this man will not be fairly treated by the

Indian army or the Indian Government."

Furthermore, in view of the information received from the Indian

authorities, this prediction of the High Court has clearly been

fulfilled.

To the extent that the applicant seeks a remedy enabling him to

challenge the procedure laid down by the 1952 Act, and thus seeks

judicial review of legislation, the settled case-law of the Commission

in the case of Young, James and Webster (Comm. Rep. 14.12.79, para.

177) has established that no such judicial review of legislation is

required under the terms of the Convention by virtue of Article 13

(Art. 13).

Article 14 (Art. 14)

The respondent Government submit that there has been no discrimination

against the applicant in the enjoyment of his rights under the

Convention.  The procedures of the 1952 Act relate only to alleged

absentees and deserters from the forces of the countries referred to

in Section 1 of the 1952 Act, but no difference in treatment which

cannot be justified arises in respect of members of the forces of such

countries as opposed to members of other forces, since the distinction

between different countries is analogous to the usual practice in

extradition law, which is to deal only with those countries in whose

legislative judicial and penal practices there is a broad basis of

reciprocity with that in the United Kingdom. Furthermore, it is well

recognised and generally accepted that special procedures are to be

applied to members of the armed forces with regard to jurisdiction

over alleged offences.  This is established in the case-law of the

Convention by judgment in the case of Engel and others (Eur. Court

H.R., judgment of 8.6.1986, Series A, no. 22).  An important

characteristic of military life is that a serviceman may be required

to serve abroad, but in so doing it is a generally recognised

principle that the serviceman "carries his own law with him wherever

he is required to serve".  Accordingly there is no discrimination in

the present case contrary to Article 14 of the Convention (Art. 14).

B.      Submissions of the Applicant

1.      The facts

The applicant rejects the respondent Government's suggestion that his

letter of resignation might not have reached the Indian army

authorities, an allegation which was not made at any stage in the

proceedings in England or in India.  In addition, the references to

the applicant's departure from his last known address in London,

should not be misunderstood.  The applicant remained at that address

for some six months after his letter of resignation, and during that

period it was open to the Indian Army authorities and the United

Kingdom Government to contact him or indeed arrest him at that

address.  Neither at that stage, nor subsequently, did he make any

attempt to conceal his whereabouts.

The applicant takes exception to the references to the Immigration Act

1971, which is of no relevance to his case.  He was not dealt with as

an illegal immigrant, but was dealt with under the 1952 Act.  The

outcome might well have been different if he had been accused of being

an illegal immigrant, but no question arises of his having been so

treated.

2.      Domestic law and practice

The applicant accepts the respondent Government's statement of the law

subject to the scope of the task of the Magistrates' Court in

accordance with the 1952 Act.  In view of the decision in the Williams

case (supra) it is not correct that the Magistrates' Court will order

a man to be handed over "if satisfied that he is a deserter".  The

court need only be satisfied that the man is subject to military law;

the certificate of the military authorities provided under Section 14

(b) of the 1952 Act is sufficient evidence that the man is a deserter.

As a result, when such a certificate has been adduced, the man will be

handed over to the relevant authorities to whom the question is left

as to whether the applicant is a deserter. The law and procedure of

the trial of that issue will be the law of the military authority in

question; in this case the law was Indian law, to which the protection

of the European Convention of Human Rights does not apply.

3.      Admissibility and merits

With regard to the question whether the applicant was subject to

military law at the time of his purported resignation and/or

desertion, the applicant does not contend that his commission had

already expired in 1975.  It is his contention that his commission

continued up to the moment when he resigned from it.  Furthermore, the

assertion that he was entitled to resign from his commission is

supported by the expert evidence of Indian law which was adduced

before the domestic courts.

The respondent Government's assertion is that the issue of whether the

applicant's commission had come to an end is solely one for the Indian

authorities.  The domestic legislation of the United Kingdom clearly

does not envisage this issue being tried by the Indian authorities

until after the person in question has been handed over and deported.

If the respondent Government's claim is correct therefore, the alleged

deserter could be handed over to the relevant authorities simply

because they claim that he is subject to military law, and issue a

certificate that he is a deserter.  Such a view is directly

contradicted by the Ex parte Williams case (supra) and is plainly

wrong.  The question of whether the applicant was still subject to

military law cannot therefore be one for the Indian army authorities.

Article 3 (Art. 3)

The applicant contends that he was subjected to inhuman and degrading

treatment and punishment in that he was uprooted from his home, family

and occupation in the United Kingdom some six years after his alleged

desertion.  At no time was he informed that his resignation had not

been accepted, and at no time had he attempted to conceal his

whereabouts.  Furthermore, after his arrest, the applicant was handed

over to the Indian Army authorities and deported to India, a country

where the guarantees of the Convention do not apply.  He was tried and

sentenced to two months' rigorous imprisonment, a penalty which

greatly outweighed the seriousness of the offence which the applicant

was alleged to have committed.  Nor can the applicant be considered to

be the author of his downfall; the treatment was not a direct

consequence of the applicant's decision to resign, since he was not

even told that his resignation was ineffective.

Article 5 (Art. 5)

The applicant disputes that he was detained "with a view to

deportation or extradition" as provided for by Article 5 para. 1 (f)

of the Convention (Art. 5-1-f).  He was indeed neither deported nor

extradited by the respondent Government, but was detained with a view

to being handed over to the Indian army authorities.

There is an essential difference between extradition and the procedure

under the 1952 Act, namely that the Secretary of State has no

discretion to intervene in the procedure under the 1952 Act.  His

discretion to intervene in extradition proceedings permits him to take

account of delay in bringing the proceedings in question when

exercising that discretion.  No such opportunity is provided under the

terms of the 1952 Act.

Article 6 (Art. 6)

The delay of some six years before the applicant's arrest was sought

meant that any subsequent trial for a criminal offence could not be

conducted within a reasonable time.  The delay was not one for which

the applicant was responsible, but he does not allege that the

respondent Government caused the delay, which was clearly the

responsibility of the Indian authorities.  However, the applicant does

contend that the procedure in the 1952 Act contravenes the Convention

in that where there is a delay by a foreign power in initiating the

procedure under the Act, the respondent Government is obliged to hand

the person in question over to that foreign power, notwithstanding the

delay.  Hence the procedure under the 1952 Act contravenes Article 6

para. 1 of the Convention (Art. 6-1) in that it contains no provision for

ensuring that those who are subject to proceedings under the 1952 Act

are brought to trial within a reasonable time, and does not provide

the respondent Government with the opportunity to decide whether any

delay which has arisen would render it unfair or unreasonable to hand

the person over.

With regard to the presumption of innocence, it appears that the

respondent Government accept that the applicant was not presumed

innocent during the proceedings under the 1952 Act, but merely claim

that the requirement of this presumption does not arise in those

proceedings.  The applicant submits that the presumption of innocence

must indeed apply to the proceedings under the 1952 Act because the

Magistrates' Court hearing is the last hearing before the subject is

handed over to the authorities of a foreign State, where there is no

guarantee that that State will regard the individual as innocent until

proved guilty.  Secondly, the wording of Article 6 para. 2 (Art. 6-2)

does not contain the restriction which the respondent Government would

seek to place upon it.  The provision states that everyone "charged

with a criminal offence shall be presumed innocent".  There is nothing

to suggest that this presumption is to apply only at the final hearing

of his case; it must apply at all stages until he is actually proved

guilty.  Hence it must apply to the procedures under the 1952 Act.

Article 8 (Art. 8)

Two issues arise, first whether there was an interference with the

applicant's private and family life or his home, and secondly whether

such interference was necessary for the prevention of crime.

With regard to the first question the applicant submits the answer

must be yes.  There was a clear, devastating disruption of his private

life, his family life and his home.  He was removed from his home and

his occupation into custody, and eventually abroad, where he was

sentenced to imprisonment.  All of this happened after many years of

entrenched comfortable and profitable settlement in the United

Kingdom.  It was not a natural consequence of his resignation; if it

had been, he could not have been permitted to settle down for so many

years.  Had his removal taken place from the United Kingdom in 1975,

his claim under Article 8 (Art. 8) would have had less force, but he

was permitted to stay for six years.

With regard to the allegation that the applicant separated from his

wife in 1978 and lived with other women, these allegations are without

foundation.  No evidence of these matters was adduced at any stage in

the domestic proceedings and in any event the allegations can have no

relevance to the issue of whether the applicant's "private" or "home"

life have been interfered with.

With regard to the second question of necessity for the interference,

it is clear that there was no necessity in the present case.  The

alleged crime, of desertion, was never proved in the United Kingdom to

the satisfaction of any United Kingdom court or executive authority.

Other than the unquestioned claim by the Indian authorities, the

Government had no way of satisfying itself that a crime had been

committed.  As the respondent Government point out this was an issue

for the Indian courts.  It cannot therefore be claimed that the

applicant's removal could be justified by reference to a crime which

may or may not subsequently have been proved.

Furthermore, even if the applicant did commit a crime, his removal

could not be said to have been necessary for "the prevention of crime"

and it is relevant that the Article (Art. 8) refers to prevention and

not to the detection or punishment of crime.  There was no question in

the present case of any risk of reoffending, or that the applicant had

a criminal disposition.  Hence there was a clear interference with the

applicant's private and family life, and his home, which could not be

justified by reference to any of the matters set out in Article 8

para. 2 of the Convention (Art. 8-2).

Article 13 (Art. 13)

The applicant had no effective remedy in the United Kingdom in respect

of the violation of his rights under Article 8 (Art. 8) or any other

Article. Furthermore, the applicant's complaint under Article 8

(Art. 8) was clearly arguable.

The applicant's lack of an effective remedy is made abundantly clear

by the history of his case in the United Kingdom courts.  He applied

for a writ of habeas corpus and his application was refused. He was

also refused leave to appeal to the House of Lords.  The Divisional

Court found that the respondent Government's treatment of the

applicant was in accordance with the correct procedure of the 1952

Act.  Once this was established, the applicant could have no effective

remedy for breach of the Convention because the Convention has not

been enacted into United Kingdom law.  The Divisional Court recognised

that it might have a discretion in extreme cases, but it is clear that

this discretion was not wide enough to assist the applicant, or to

consider his circumstances, in particular the fact that he was to be

uprooted from his home and family and taken to India where he was

submitted to two months' rigorous imprisonment for a minor technical

offence.

Nor does the applicant seek to challenge the Commission's case-law

established in the case of Young, James and Webster as to the scope of

Article 13 (Art. 13).  He does not argue that the courts ought to have

power to review the 1952 Act for its conformity with the Convention.

He merely submits that the courts ought to be able to review the

treatment of individuals who are subject to ill-treatment by reason of

the provisions of the 1952 Act.  It is not therefore the legislation

which is sought to be challenged, but its application in the

individual case.

Article 14 (Art. 14)

The applicant complains that discrimination occurred against him by

reason of his status as an alleged deserter, and not by reason of his

status as a serviceman.  As an alleged deserter he was treated

differently from any other alleged offender in the respects mentioned

above.

Moreover, he was treated differently from an alleged deserter from the

forces of the States not mentioned in the 1952 Act.  This cannot be

justified in the manner suggested by the respondent Government,

because it is quite wrong to suggest that there is a broad basis of

reciprocity of practice between the United Kingdom and the States to

which the 1952 Act applies.  Furthermore, Article 14 of the Convention

(Art. 14) does not provide for such reciprocity, were it to exist, to

be an exception to its provisions.

THE LAW

1.      The applicant complains first that his arrest and detention

under the 1952 Act was contrary to Article 5 of the Convention

(Art. 5).  He contends in particular that the procedure for his

surrender under the 1952 Act is not covered by Article 5 para. 1 (f)

(Art. 5-1-f) as detention with a view to extradition, since normal

extradition proceedings in the United Kingdom have safeguards which

the procedure under the 1952 Act lacks.

Article 5 para. 1 of the Convention (Art. 5-1) guarantees "the right

to liberty and security of person", except "in accordance with a

procedure prescribed by law" in certain cases.  The exceptions

expressly referred to are exhaustively listed in sub-paras. 1(a) to

(f) of this provision (Art. 5-1-a, Art. 5-1-b, Art. 5-1-c, Art. 5-1-d,

5-1-e, 5-1-f), including the following specific cases:

(f)     the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition.

In the present case the applicant was arrested on 19 February 1981 as

a suspected deserter from the Indian Army, in accordance with the

provisions of Section 186 Army Act 1955 as applied by Sections 13 (1)

of the 1952 Act.

The Commission recalls its decision on the admissibility of

Application No. 8971/80 (supra), which concerned, inter alia, the

arrest and surrender of a deserter from the Indian Airforce, who had

entered the United Kingdom after his desertion, and who was returned

to India subsequent to his surrender to the Indian authorities.  In

that case the applicant complained that he was denied the protection

required by Article 5 para. 4 of the Convention (Art. 5-4), which

complaint was declared manifestly ill-founded.  The Commission there

considered that the applicant's detention pursuant to the 1952 Act was

covered by the terms of Article 5 para. 1 (f) (Art. 5-1-f) since the

arrangements of the 1952 Act resemble a special form of extradition

under the terms of a specific bilateral arrangement between the United

Kingdom and India.

The Commission notes that the order made by the Magistrates in the

present case was one surrendering the applicant into the jurisdiction

of the Indian military authorities.  It was not, as such, therefore an

order which, on its face, involved the removal of the applicant from

the United Kingdom, but this was a foreseeable consequence of the

making of the order in the particular circumstances of this case.

The Commission therefore considers that the present case may be

compared in fact with an extradition case and must therefore examine

whether the applicant's detention was in conformity with Article 5

para. 1 (f) of the Convention (Art. 5-1-f).  In this respect it notes

that the applicant's arrest and detention prior to his surrender to

the Indian military authorities was in accordance with domestic law,

since it was provided for under the terms of the 1952 Act.

Furthermore, the conformity of his arrest and detention with domestic

law was examined and established in the habeas corpus proceedings

which the applicant issued in the United Kingdom.

The Commission must also decide whether the applicant's lawful

detention satisfied the further requirements of Article 5 para. 1 (f)

(Art. 5-1-f), namely that the applicant was 'a person against whom

action is being taken with a view to deportation or extradition'.  The

applicant's surrender to the Indian authorities took place in the

United Kingdom. However this surrender was a surrender out of the

jurisdiction of the United Kingdom and was in fact effected directly

with a view to the applicant's removal to face trial in India.

Furthermore, this surrender was implemented under the terms of the

1952 Act, which is a special provision implementing the bilateral

relations of the United Kingdom with certain other States concerning

the treatment of, and authority over, foreign military staff and

personnel.  The Commission finds that in this respect the 1952 Act may

be regarded as implementing a special arrangement in the nature of an

extradition arrangement and applicable to such military personnel.

It follows that the applicant's detention under the 1952 Act was in

accordance with Article 5 para. 1 (f) of the Convention (Art. 5-1-f)

and that this aspect of the applicant's complaints is manifestly

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

Convention (Art. 27-2).

2.      The applicant further complains that, by virtue of the delay

of the Indian authorities in seeking him out for surrender under the

procedures of the 1952 Act, and the delays in the operation of his

surrender before the English courts, he has been deprived of the

opportunity for a fair trial within a reasonable time in connection

with the criminal charge of being a deserter from the Indian Army.  In

this respect he invokes Article 6 para. 1 of the Convention (Art. 6-1)

which, as far as relevant, provides as follows:

"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."

However the Commission finds that the respondent Government cannot be

held responsible for the breach of Article 6 para. 1 of the Convention

(Art. 6-1) which the applicant here alleges, since the applicant does

not face a criminal charge in the United Kingdom.  The criminal charge

at issue in the present case is a charge of being a deserter from the

Indian Army, and it was pursuant to the reasonable suspicion of this

offence, an offence under Indian military law, that the applicant was

ordered to be surrendered to the Indian military authorities.  The

consequences of the delay in initiating and pursuing these proceedings

against the applicant for the reasonableness of the time taken for the

determination of the criminal charge against him must be evaluated by

the court which has jurisdiction to determine that criminal charge.

However such a court would not be a court in the United Kingdom, nor

one for which the United Kingdom could have State responsibility,

since it would be a court of military jurisdiction in India.  It

follows that this part of the application is incompatible ratione

personae with the provisions of the Convention within the meaning of

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

3.      The applicant further complains that he has been denied the

presumption of innocence in the proceedings against him in the United

Kingdom, in that he maintains that he has been presumed to be a

deserter from the Indian Army, and therefore guilty of a criminal

offence, throughout the proceedings for his surrender under the terms

of the 1952 Act.  Article 6 para. 2 of the Convention (Art. 6-2)

provides as follows:

"Everyone charged with a criminal offence shall be presumed innocent

until proved guilty according to law."

The Commission notes that it cannot be excluded from a reading of the

text of this Article that it may impose an obligation to respect the

presumption of innocence on jurisdictions which are not directly

involved in the determination of criminal charges in a particular

case.  This follows from the very general terms of this provision,

which is reflected both in the English and the French texts.

Nevertheless, in the present case, such an interpretation of the

Convention is not at issue.  The applicant's complaint is that he is

presumed to be a deserter, and therefore guilty of a criminal charge

under Indian law, for the purposes of the 1952 Act procedure. However,

it appears to the Commission that the presumption of innocence in

favour of the applicant is not compromised in the circumstances of

this case for the following reasons.  Under the terms of Section 14

(b) of the 1952 Act, the applicant is only considered to be a deserter

from the Indian Army if a certificate is issued by the Indian military

authorities to this effect.  Furthermore, such a statement is not

irrebuttable and may be countered in the proceedings before the

Magistrates' Court by evidence to the contrary.

Furthermore, the operation of a system such as the 1952 Act for the

surrender of military personnel who have deserted or are absent

without leave presupposes that a certain degree of suspicion must

exist that the particular individual is a deserter or absent without

leave before such a person could be subjected to detention in

conformity with Article 5 para. 1 (f) (Art. 5-1-f).  Suspicion which

may arise in these circumstances is an inherent aspect of the

operation of such a system and is a common feature of extradition

cases.

The Commission finds that suspicion arising in these circumstances

does not give rise to an issue under Article 6 para. 2 of the

Convention (Art. 6-2).  It follows that this aspect of the applicant's

complaint is manifestly ill-founded within the meaning of Article 27

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

4.      The applicant further complains that his surrender to the

Indian military authorities, and his ultimate removal from the United

Kingdom which was a foreseeable consequence of that surrender,

constituted inhuman and degrading treatment contrary to Article 3 of

the Convention (Art. 3) and an unjustified interference with his home,

private and family life, following as it did a total period in the

United Kingdom of 11 years, the proceedings having been instituted

more than seven years after he had purportedly resigned from the

Indian Army. In as far as the applicant invokes Article 3 of the

Convention (Art. 3), the Commission finds that the matters complained

of do no attain the degree of seriousness which might give rise to an

issue under this provision.

The Commission must also examine this complaint with reference to

Article 8 of the Convention (Art. 8), which provides as follows:

"1.     Everyone has the right to respect for his private and family

life, his home and his correspondence.

2.      There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law

and is necessary in a democratic society in the interests of national

security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others."

The Commission notes that when the applicant purported to resign from

the Indian Army on 25 September 1975, he referred amongst the reasons

for his decision to the health of his wife, who suffered from asthma

and was undergoing medical treatment, and the educational position of

his daughter, who was aged 17, and was finishing her final school

exams.  The applicant also referred to the fact that he was in the

process of buying property in the United Kingdom.

The Indian military authorities at the Indian High Commission wrote to

the Home Office informing them that the applicant had been relieved of

his duties in London on 20 September 1975, and as a member of the

service's personnel of the Government of India could not take

employment elsewhere.  Nevertheless, proceedings against the applicant

under the 1952 Act were only initiated in February 1981 and the

applicant was ultimately surrendered to the Indian military

authorities in December 1982.

The question arises in these circumstances whether the applicant has

established an interference with his home, private and family life, by

virtue of the ultimate instigation of surrender proceedings under the

1952 Act.

It is well-established in the Commission's case-law that an

interference with the right to respect for family life may arise where

an individual faces de facto removal from the territory of a High

Contracting Party to the Convention to a country where his family

cannot reasonably be expected to follow him.  The justification for

such an interference must be examined by reference to Article 8

para. 2 (Art. 8-2).  In the present case, although the applicant

referred to family reasons among others in his letter of resignation

to the Indian military authorities of 25 September 1975, the

respondent Government have submitted that by the time of the

applicant's arrest in February 1981 he was no longer living with his

wife or daughter.  They contend therefore that at the time of the

applicant's surrender to the Indian authorities the applicant's family

life did not subsist as a matter of fact.

The applicant's representatives have denied the Government's

allegation and argued that no such allegation was made in the course

of the domestic proceedings under the 1952 Act or those for habeas

corpus.  They have not, however, given any details of the whereabout

of the other members of the applicant's family at the time of his

arrest, or otherwise substantiated the continuing existence of his

family life with them.

In these circumstances the Commission finds that it is not

established, as a matter of fact, that the applicant's arrest and

ultimate surrender to the Indian military authorities constituted an

interference with his right to respect for his family life protected

by Article 8 of the Convention (Art. 8).

The applicant has nevertheless contended that his arrest and surrender

under the 1952 Act constituted an interference with his right to

respect for his home and private life which is also protected by this

provision.  In the context of the present application this complaint

appears to concern principally the interference with the realm of the

applicant's private life, since no specific submissions relating to

the whereabouts or character of the applicant's home have been made.

The Commission's case-law shows that the right for an alien not to be

expelled from a particular country and the right to establish oneself

in a country are not specifically guaranteed by Article 8 of the

Convention (Art. 8) (Applications No. 4314/69, Dec. 2.2.70,

Collection 32 p. 96, No. 4403/70 and others, Dec. 10.10.70, Collection

36 p. 92 and No. 5269/74, Dec. 8.2.72, Collection 39 p. 104).

In the present case the Commission has held that the applicant's

arrest and detention under the 1952 Act was in conformity with

Article 5 para. 1 (f) of the Convention (Art. 5-1-f) and that his

surrender to the Indian military authorities resulted from the

operation of a special type of extradition arrangement.

Such a surrender to the Indian military authorities must necessarily

imply a disruption of private life but this inevitable consequence of

any extradition, which is recognised under the terms of Article 5

para. 1 (f) of the Convention (Art. 5-1-f), cannot in principle be

regarded as an interference with the right to respect for private life

protected by Article 8 of the Convention (Art. 8).  The applicant has

not submitted any evidence which would suggest that this principle

should be departed from in the present case.  The Commission therefore

finds that there has been no interference with the applicant's right

to respect for his private life.

It follows that the applicant's complaints under Article 8 of the

Convention (Art. 8) are, as a whole, manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) thereof.

5.      The applicant further invokes Article 13 of the Convention

(Art. 13) and contends that he had no effective remedy before a

domestic authority for the violations which he alleges of the

substantive Articles of the Convention.  Article 13 (Art. 13)

provides :

"Everyone whose rights and freedoms as set forth in this Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity".

The Commission has interpreted this provision as requiring the

existence of a remedy before a national authority for anyone who may

make an arguable claim that their rights under the Convention have

been violated.  The applicant contends that his complaint under

Article 8 of the Convention (Art. 8) is arguable.  This is disputed by

the respondent Government.

The Commission considers that complaints which are incompatible with

the provisions of the Convention are not "arguable" in this sense and,

similarly, that wholly unsubstantiated complaints do not satisfy this

requirement.

In the present case, the applicant's complaint of an interference with

his right to respect for his family life is wholly unsubstantiated on

the facts and thus not arguable.

In as far as the applicant has also invoked his right to respect for

his private life, the Commission has found that there has not been any

interference with this right, since the interference alleged was the

inevitable consequence of the applicant's surrender to the Indian

authorities.

In these circumstances the Commission considers that the finding that

there was no interference with the applicant's right to respect for

his family or private life implies that the applicant could not make

an arguable claim of such an interference.  Thus the Commission finds

that the applicant cannot rely upon Article 13 of the Convention

(Art. 13), since his claims under Article 8 of the Convention (Art. 8)

are not arguable. Similarly he has made no arguable claims in respect

of any other substantive provisions of the Convention.

It follows that this aspect of the applicant's complaint is manifestly

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

Convention (Art. 27-2).

6.      Finally, the applicant has invoked Article 14 of the

Convention (Art. 14), which provides as follows:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, national

or social origin, association with a national minority, property,

birth or other status."

The applicant alleges that he was discriminated against by virtue of

his status as an alleged deserter from the Indian Army and that, on

account of this suspicion, he was treated differently from any other

alleged offender, and differently from an alleged offender from the

armed forces of a country not covered by the provisions of the 1952

Act.

The respondent Government contend that the applicant has not been the

subject of differential treatment on an unjustified basis. They refer

to the recognition given by the Court in the case of Engel and others

(Eur. Court H.R., judgment of 8 June 1976, Series A No. 22) to the

particular characteristics of military life and submit that account

must be taken of the fact that when a serviceman is posted overseas,

he carries his own law with him wherever he is required to serve.

Furthermore, as between servicemen subject to the 1952 Act and other

servicemen, any difference in treatment is justified by the broad

measure of reciprocity as to legislative, judicial and criminal law

practice in those countries to which the 1952 Act applies.

The Commission finds that the difference in treatment between the

applicant as an alleged deserter and another alien suspected of a

criminal charge may be justified in view of the particular

characteristics of military life and the fact that a serving soldier

is considered subject to the military law of the country he serves

regardless of his whereabouts.  As a result his circumstances are not

comparable with those of a civilian suspected of a criminal offence.

With regard to the alleged discrimination between servicemen serving

different countries, the Commission notes that the 1952 Act replaces

earlier legislation which in part originated in the arrangements for

the arrest and surrender of servicemen from forces of those states in

the British Commonwealth which originally held Dominion status, and in

part originated in arrangements in respect of the forces of countries

with which the United Kingdom had made common defence arrangements.

In these circumstances the resulting similarity in military legal

practice constitutes an objective and sufficient justification for the

differential treatment of certain servicemen under the 1952 Act and of

others from countries to which the 1952 Act does not apply.

It follows that this aspect of the applicant's complaint is manifestly

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

Convention (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                            (C.A. NØRGAARD)