CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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 com