C. v. THE UNITED KINGDOM
Doc ref: 10427/83 • ECHR ID: 001-518
Document date: May 12, 1986
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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)