THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30280/96

by Stephen JORDAN

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 27 April 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza,

Mr L. Loucaides,

Mr P. K  ris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 February 1996 by Stephen JORDAN against the United Kingdom and registered on 23 February 1996 under file no. 30280/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 19 June 1998 and the observations in reply submitted by the applicant on 27 July 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1971 and living in Wednesbury. He is represented before the Court by Mr John Mackenzie, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant joined the British Army in 1988. In 1995 he was a soldier of the regular forces in the Grenadier Guards. On 3 March 1995 the Special Investigations Branch of the military police (“SIB”) began investigating charges against him in relation to the misuse of travel warrants. The applicant was due to be interviewed on 28 March 1995 and went missing from his unit. On 20 April 1995 he was arrested by the civilian police and returned to his unit. His Commanding Officer dealt with the charge summarily and sentenced him to, inter alia , 28 days imprisonment. The applicant served 23 days (after remission for good conduct in detention).

The applicant was therefore due for release on 27 May 1995 but his detention continued on the basis of the suspected offences that were being investigated by the SIB. On 1 and 2 June 1995 the applicant was interviewed by the SIB and he was advised by a civilian solicitor during those interviews. The applicant then instructed his current representative on 15 June 1995. On 16 June 1995 the applicant was brought before his Commanding Officer and a charge sheet recording one charge under the Theft Act 1968 relating to the making of fraudulent motor mileage claims was read to the applicant. On 22 June 1995 the applicant ’ s representative requested copies of delay reports to date and these were furnished by the army authorities by letter dated 3 July 1995.

On 29 August 1995 a further charge sheet was read to the applicant which included eight additional and similar charges (obtaining property by deception contrary to the Theft Act 1968) and the applicant was remanded for trial by court-martial. On 15 September 1995 the applicant applied for legal aid under the army legal aid scheme and legal aid was granted as from 1 November 1995.

In November 1995 the applicant commenced habeas corpus proceedings in the High Court requesting his release on the basis, inter alia , that applicant had not been given a formal hearing at which he might hear the case against him and present his own case for being released and because of the delay in holding the court-martial. In their pleadings, the army authorities admitted that due to an “administrative oversight” the applicant had not been charged until 16 June 1995. Although the army authorities initially accepted that his detention between 27 May and 16 June 1995 was therefore unlawful, they argued later in the pleadings that that detention was, despite the oversight, lawful. On 11 December 1995 the army authorities gave an undertaking to the High Court that the applicant would be released from close arrest and held under open arrest. He was released from close arrest to open arrest on the same day. The form of order of the High Court recorded the pleadings before it and the Government ’ s undertaking to release the applicant. It noted that no order was being made on the application except to award costs to the applicant. The Guardian newspaper of 12 December 1995 reported that the High Court judge had commented that by the time of the applicant ’ s court-martial (at that stage, due to take place in February 1996) the applicant would have served nearly half of the maximum sentence of two years. The applicant was released from open arrest in mid-1996 and was sent on leave.

On 12 February 1996 the applicant instituted further proceedings in the High Court for compensation from the Ministry of Defence in respect of his detention from 27 May to 11 December 1995. The applicant alleged unlawful detention, breach of a duty of care, false imprisonment and trespass to the person. The defence filed by the army authorities in those proceedings accepted that the applicant had not been charged until 16 June 1995, initially because the investigation of the charges had been impeded by his absence and, subsequently, due to an error associated with the replacement of the applicant ’ s Commanding Officer. Those authorities therefore accepted that the applicant ’ s detention between 27 May and 16 June 1995 was unlawful. Various other admissions were made by the army authorities as regards the failure to properly complete the 40, 72 and 100 day delay reports but it was denied that those latter omissions rendered the applicant ’ s subsequent detention unlawful. The applicant had also claimed, and the army authorities denied, that there had been a violation of the rules of natural justice and of Article 5 § 3 of the Convention.

The matter was settled on 21 October 1996 with the applicant being paid a substantial sum of money and his costs “in full and final settlement of all claims which he had or may have in this action”. The parties agreed that the terms of the settlement would be confidential and each undertook not to disclose the terms of the settlement to any third party “save as may be necessary for the purposes of implementing the terms and save as may be required by any Court or any other authority of competent jurisdiction”.

Although a district court-martial was initially convened by order of 31 October 1995 to try the applicant, it was postponed on a number of occasions. In March 1997 the applicant was charged with further but similar offences and on 27 November 1997 the army authorities directed that the applicant be tried by court-martial on the 27 outstanding charges against him. On 14 July 1998 the applicant applied for leave to apply for judicial review as regards the outstanding court-martial proceedings seeking, inter alia , orders that the direction of November 1997 to proceed with the court-martial be quashed and that the court-martial proceedings be stayed as an abuse of process. On 4 November 1998 the High Court directed that the application be listed for hearing before the full court. The applicant remains on leave and has not yet been tried.

B. Relevant domestic law and practice

At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act 1955 (“the 1955 Act”), in the Rules of Procedure (Army) 1972 (“the 1972 Rules”) and in the Queen ’ s Regulations for the Army 1975 (“the Queen ’ s Regulations”).

The law has been amended by, inter alia , the Armed Forces Act 1996 (see Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 276, §§ 52-57) and by the Investigation and Summary Dealing (Army) Regulations 1997. The provisions detailed below are those applicable at the time of the applicant ’ s arrest and detention.

Obtaining property by deception contrary to the Theft Act 1968, when tried by a district court-martial, carries a potential punishment of 2 years imprisonment.

1. Arrest

A warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by the Commanding Officer and any such warrant must be addressed to the civilian police. A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military (section 190A of the 1955 Act).

2. Detention

The relevant rules vary depending on whether the accused is, on the one hand, a non-commissioned officer or soldier or, on the other hand, an officer or warrant officer. In the former case (described below), the Commanding Officer ’ s powers are generally broader as regards the investigation and pursuit of charges against an accused.

(a) The 1955 Act

Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and that as soon as may be, either proceedings shall be taken for punishing the offence or he shall be released from arrest. In addition, should that detention last longer than eight days without a court martial being convened, a report (a “delay report”) on the necessity for further delay shall be made by the person ’ s Commanding Officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court martial is assembled or the offence is dealt with summarily or the accused is released from detention.

Any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person ’ s Commanding Officer and, before any action is taken, the Commanding Officer must investigate the charge (section 76).

After investigation, a charge (which cannot be dealt with summarily) may be dismissed by a Commanding Officer if he is of the opinion that it ought not to be proceeded with. Moreover, if it appears to the Commanding Officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under the 1955 Act, the Commanding Officer may stay further proceedings (sections 77 and 77A).

If the Commanding Officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the Commanding Officer is of the opinion that it should not be so dealt with, he shall take the “prescribed steps” with a view to the charge being tried by court martial (section 78(1) and (2)). Dealing summarily with a charge includes taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78(3)). However, where the Commanding Officer has taken steps to have the charge tried by court martial, any higher authority to whom the case is forwarded may refer the charge back to the Commanding Officer to be tried summarily if the charge is one that can be dealt with summarily (section 78(6)) or with a direction to dismiss the charge or to stay all further proceedings therein.

(b) The 1972 Rules

Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his Commanding Officer shall, unless it is impracticable, within forty-eight hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the forty-eight hours, the Commanding Officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation (Rule 4(2)).

The report to which section 75 of the 1955 Act refers shall be signed by the Commanding Officer of the person detained and shall be sent to the person who would be responsible for convening the court martial (Rule 5). According to Schedule 1 to the 1972 Rules the report must, inter alia , specify whether the accused is in close or open arrest, the reasons for his detention, certain details about the progress of the investigations and of the preparation for trial together with the reasons for the delay since the last report.

The accused shall not be held in arrest for more than seventy-two consecutive days without a court martial having been convened unless the convening officer directs in writing, citing reasons, that the accused shall not be released from detention (Rule 6).

Rule 10(1) provides that an abstract of evidence shall be made by the Commanding Officer or by another officer on the direction of the Commanding Officer. The accused shall not be present while the abstract of evidence is being made and it shall consist of a signed statement by, or a précis of the evidence of, each witness whose evidence is necessary to prove the charge. Once compiled, the accused is given (normally by the officer who compiled the abstract) a copy and the accused is cautioned as follows:

“This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence.” (Rule 10(2) of the 1972 Rules)

Statements submitted by the accused (including those of witnesses which he wishes to be included in the abstract) shall be attached to the abstract of evidence and shall thereafter form part of it (Rule 10(4)). The pamphlet entitled “Rights of a Soldier” (which is given to accused persons and which is available in the cells in the guardroom) describes the purpose of the extract of evidence as, inter alia , to “provide a brief for the prosecutor at trial” and to inform the accused of the evidence which will be given at trial.

The prescribed steps to be taken by a Commanding Officer for sending a case for trial by court martial include, in accordance with Rule 13, sending to higher authority a draft charge sheet (signed by the Commanding Officer), the abstract of evidence, a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with (for example, by district or general court martial). It is the convening officer who finally decides on the charges to be retained against an accused and he generally does so by countersigning the draft charge sheet submitted by the Commanding Officer.

(c) Queen ’ s Regulations

Paragraph 6.005 of the Queen ’ s Regulations states that the mere allegation that a person subject to military law has committed an offence does not, of itself, necessarily warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline.

The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses, where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself, and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (also paragraph 6.005).

Paragraph 6.007 provides that (subject to, inter alia , the general principle that the accused is not to be unnecessarily held under arrest) Commanding Officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released.

Paragraph 6.045(c) provides that the person into whose custody the accused is committed is to inform the accused of the rank, name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation. Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia , that on the receipt of every delay report the convening officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (subsections (a) and (b)). On receipt of the fourth delay report, or, in any event, after forty days detention, the convening officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (subsection (c)). If an accused is not brought to trial by the seventy-second day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (subsection (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)).

Where an accused has been in detention for seventy-two consecutive days without a court martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (paragraph 6.047(f)). Delay reports are not, as a rule, copied to the accused or his representative.

3. Habeas corpus

Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. Jurisdiction is normally exercised by the Divisional Court of the Queen ’ s Bench Division of the High Court and habeas corpus is available to persons in military custody (R. v. Royal Army Service Corp. Colchester ex parte Elliott, [1949] 1 All England Law Reports at p. 373).

The scope of this review will depend on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. However, the court will examine the legal validity of an accused ’ s detention and whether there is sufficient evidence to detain him, and, if the power to detain depends on the prior establishment of an objective fact, the court will decide whether that fact exists (Khawaja v. Secretary of State for the Home Department, [1984] Appeal Cases, at p. 74). An order for detention can be set aside if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose (R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 AER 641).

Legal aid is not available from the military authorities for applications to the civilian courts, including applications for a writ of habeas corpus. However, legal aid from the civilian authorities is available for such proceedings. A person will not be granted representation for the purposes of any such proceedings unless it is considered that there are reasonable grounds for taking, defending or being a party to proceedings (section 15(2) of the Legal Aid Act 1988). Such an application for legal aid will only be approved after all the questions of fact or law arising in the action, cause or matter to which the application relates, and all the circumstances in which the application was made, have been considered (Civil Legal Aid (General) Regulations 1989). An application for an emergency legal aid certificate can be made pursuant to the Civil Legal Aid (General) Regulations 1989. The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings, the circumstances in which it is required, whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid.

4. District army courts-martial

The relevant provisions of the 1955 Act relating to courts-martial are set out in the Cable and others judgment (Cable and Others v. the United Kingdom judgment of 18 February 1999, to be published in the Official Reports of selected Judgments and Decisions).

COMPLAINTS

The applicant complains under Article 5 § 2 of the Convention about the delay until 16 June 1995 in initially informing him of the charges against him and about the later addition of further charges. He also complains that he did not have a hearing which complied with Article 5 § 3 of the Convention or an effective procedure to challenge the decision to detain him which complied with Article 5 § 4 of the Convention. He further complains under Article 5 § 5 that he did not have an enforceable right to compensation and under Article 13 that he did not have an effective domestic remedy in respect of the above violations of the Convention.

PROCEDURE

The application was introduced on 19 February 1996 and registered on 23 February 1996.

On 14 January 1998, the Commission decided to communicate the applicant ’ s complaints concerning his detention under Article 5 §§ 3, 4, and 5 to the respondent Government, to adjourn the consideration of the complaints under Articles 5 and 13 and to declare the remainder of the application inadmissible.

The Government ’ s written observations were submitted on 19 June 1998 and the applicant replied on 27 July 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. Article 5 of the Convention

The applicant complains under Article 5 §§ 2, 3, 4 and 5 which Article, insofar as relevant, provides as follows:

“2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c. of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

The Government limit their observations to referring to the settlement reached between the parties on 21 October 1996 submitting that the applicant can no longer claim to be a victim of the violations of the Convention of which he complains or, in the alternative, that the complaint is manifestly ill-founded or an abuse of the right of petition.

(a) Article 5 §§ 2 and 5 of the Convention

The applicant complains under Article 5 § 2 that after his detention on 27 May 1995 he was not informed of the charge against him until 16 June 1995 and submits that the only reason he was charged at that point was because he had instructed his current legal representative. He also complains that he was informed of later charges against him on 19 August 1995 and again in mid-1997. He submits that the real basis for his detention after 27 May 1995 was the more serious offences which were investigated while he was in detention and with which he was charged in 1997.

The Court recalls that unless the State provides redress for, and acknowledges either expressly or in substance, the breach of the Convention of which the applicant complains, the applicant can continue to claim to be a victim of those violations (Eckle v. Germnay judgment of 15 July 1982, Series A no. 51, p. 30, § 66).

The Court notes that the applicant ’ s habeas corpus proceedings and subsequent action for compensation raised, inter alia , the army authorities ’ failure to inform the applicant within 48 hours of the charges against him as provided by Rule 4 of the 1972 Rules. The Court considers that those settlements provided the applicant with redress for the relevant omission, the applicant having been consequently released to open arrest in December 1995 and compensated following the settlement of October 1996. In addition, the army authorities acknowledged this omission and, in the compensation proceedings, accepted that the applicant ’ s detention from 27 May to 16 June 1995 was consequently unlawful. In addition, given the question of domestic law at issue, the proceedings instituted by the applicant had the potential to provide him with a similar acknowledgement by the domestic courts had he pursued them as far as judgment. In such circumstances, the Court considers that the applicant cannot claim to be a victim of a violation of Article 5 §§ 2 or 5 the Convention in respect of the delay until 16 June 1995 in informing him of the charges against him.

Moreover, the Court considers that the later addition of charges against the applicant in August 1995 and in March 1997 does not give rise to a violation of Article 5 § 2 (No. 10819/84, Dec. 5.7.84, D.R. 38, p. 230). Furthermore, the applicant has not substantiated his submission to the effect that the army authorities continued his detention after 27 May 1995 solely because of the additional charges laid against him in 1997. Accordingly, the Court finds these additional complaints under Article 5 § 2 and, consequently, the related Article 5 § 5 complaint, manifestly ill-founded.

These complaints must therefore be declared inadmissible pursuant to Article 35 § § 3 and 4 of the Convention, it being not therefore necessary to consider the Government ’ s additional submission relating to an abuse of the right of petition.

(b) Article 5 §§ 3 and 5 of the Convention

The applicant complains that he did not have a hearing which complied with Article 5 § 3 of the Convention and the principles as laid down in the De Jong, Baljet and Van Den Brink and the Schiesser judgments (Eur. Court HR, De Jong, Baljet and Van Den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, and Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34). He mainly submits, in this respect, that his Commanding Officer and the other officers with decision-making power as regards his detention were closely connected to the prosecution of the case against him and that none were legally qualified. He also submits that he was not told who had made the decision to detain him in close arrest or why, and that he had no opportunity to present reasons against his on-going detention. He further refers to the delay in holding the Rule 4 hearing and points out that there is no requirement for an assessment of the need for continued detention against specific criteria.

The Court considers that the applicant can claim to be a victim of a violation of Article 5 §§ 3 and 5, given the deficiencies of domestic law which he alleges in this context. The domestic courts did not have jurisdiction to rule on the compliance of domestic law with the Convention and, accordingly, the proceedings instituted by him could not have provided the applicant with any redress for or acknowledgement of the alleged violations of the Convention. Similarly, since the questions raised by the applicant under Article 5 §§ 3 and 5 of the Convention could not have been addressed by the domestic proceedings he pursued, his settlement of those proceedings does not render his application to the Court in these respects an abuse of the right of petition.

The Court recalls its recent judgment in the Hood case (Hood v. the United Kingdom judgment of 18 February 1999, to be published in the Official Reports of selected Judgments and Decisions) where it found that the applicant ’ s Commanding Officer, who conducted the Rule 4 procedure which the Government contended fulfilled the requirements of Article 5 § 3, could not constitute a “judge or other officer” for the purposes of Article 5 § 3 of the Convention. The Court also concluded as to a violation of Article 5 § 5, there being no enforceable right to compensation in domestic law for the contravention of Article 5 § 3 established in that case. The Court notes that, in the present application, the Rule 4 procedure took place on 16 June 1995, twenty days after the beginning of the applicant ’ s pre-trial detention.

In such circumstances, the Court considers that the application raises serious issues under Article 5 §§ 3 and 5 of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

(c) Article 5 §§ 4 and 5 of the Convention

The applicant also complains that he had no procedure available to him to challenge the decision to detain him which complied with Article 5 § 4 of the Convention.

He submits that the decision of the High Court in the habeas corpus proceedings was made on the basis that the applicant had already been in custody for half of the maximum potential sentence. According to the applicant, no such judgment could have been delivered until the applicant had already been in detention for a long period of time. He also refers to the lack of any requirement to inform an accused about the on-going reviews of his detention (including the provision of copies of the relevant delay reports). He points out that he never received the delay reports, that he therefore had no way of knowing whether the relevant rules were being complied with in his case. He further points out that there is no provision in the relevant army rules for a detainee ’ s release when those rules have been breached or for a sanction for non-compliance. Military legal aid does not apply to habeas corpus proceedings and, although it is likely that the legal aid board would have been sympathetic on the merits of an application for legal aid, it is unlikely that the applicant would have met the financial criteria.

For the reasons outlined in relation to Article 5 §§ 3 and 5 above, the Court considers that the applicant can claim to be a victim of a violation of Article 5 §§ 4 and 5 of the Convention and that his application in relation to these matters does not constitute an abuse of the right of petition.

The Court recalls that Article 5 § 4 requires the availability of a remedy allowing a competent court to examine not only compliance with the applicable domestic rules but also the reasonableness of the suspicion grounding arrest and the legitimacy of the purpose pursued by that arrest and the on-going detention (Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145, pp. 34-35, § 65). However, it is not required that that review should extend to a complete review on all questions of fact of the exercise of the power to detain (No. 9174/80, Comm. Report 11.10.83, D.R. 40, p. 42). An accused must have legal assistance when pursuing his claim for release where it is necessary for the remedy to be effective (Woukam Moudefo v. France judgment of 11 October 1988, Series A no. 141-B, Comm. Report 16.7.87, pp. 42-43, §§ 88-91).

The Court notes that habeas corpus proceedings were available to and instituted by the applicant. It is further noted that the High Court can examine in such proceedings the legality of an accused ’ s detention and whether there is sufficient evidence to detain him. In addition, if the power to detain depends upon the prior establishment of an objective fact, the High Court will decide whether the fact exists. The High Court can also quash an order for detention if it considers that the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose.

The Court does not consider that the applicant has demonstrated that the High Court order of 11 December 1995 was in any way based on or limited to the length of his pre-trial detention as he submits. In this latter respect, it is noted that the form of order of the High Court of that date recorded the Government ’ s undertaking to release the applicant and specifically recorded that no other order was being made by that court except in relation to costs. Indeed the applicant ’ s own statement of claim served in the subsequent High Court proceedings for compensation described the High Court ’ s order of 11 December 1995 in precisely these terms.

It is true that there is no provision for an accused is to be supplied with copies of the delay reports. However, an accused can foresee from the relevant rules when each of those delay reports should be completed and by whom. Although it cannot be excluded that this could in certain circumstances lead to an unacceptable impediment to Article 5 § 4 proceedings, the Court notes that the applicant has not shown that he or his representative requested and were refused copies of those reports or were denied confirmation of whether the reports had or had not been completed.

As regards legal aid and representation prior to 15 June 1995, the Court notes that legal aid was available to the applicant from the beginning of his continued detention on 27 May 1995 from the civilian legal aid scheme for habeas corpus proceedings (including on an emergency basis). However, the applicant did not apply for this legal aid. As to the financial conditions which would have applied to such an application, the Court considers that it is reasonable to impose such conditions on the availability of legal aid in the context of proceedings to determine the lawfulness of detention ( mutatis mutandis , No. 10594/83, Dec. 14.7.87, D.R. 52, p. 158) and that the applicant has not shown that the financial conditions of the civil legal aid system in the United Kingdom constituted an unreasonable limitation on his access to such proceedings. Finally, the applicant was legally represented from 15 June 1995 and therefore throughout the habeas corpus proceedings and the subsequent and related compensation proceedings.

In these circumstances, the Court considers that the applicant has not demonstrated that the habeas corpus proceedings failed to comply with the requirements of Article 5 § 4 of the Convention. Accordingly, his complaints under Article 5 § 4, together with the related complaint under Article 5 § 5, are manifestly ill-founded and therefore inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Article 13 of the Convention

The applicant also invokes Article 13 in conjunction with Article 5 §§ 2, 3 and 4 of the Convention. Article 13 provides that:

"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 applicant complains under Article 13 that he did not have an effective domestic remedy as regards his complaints about his pre-trial detention. However, the Court considers that in view of the finding that there was no violation of Article 5 § 4 in the present case, it is not necessary to inquire whether the less strict requirements of Article 13 of the Convention were complied with (Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145, p. 36, § 68). It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’ s complaints under Article 5 §§ 3 and 5;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J-P. Costa

Registrar President