CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 décembre 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 11 December 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         F. ERMACORA                         G. JÖRUNDSSON                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         H. VANDENBERGHE                     Mrs G.H. THUNE                     Mr. F. MARTINEZ                       Mr. J. RAYMOND, Deputy Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 19 November 1984 by J.W.R. against the United Kingdom and registered on 18 February 1985 under file No. 11396/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts as they have been submitted by the applicant, a British citizen born in Dundee in 1947 and currently detained in prison in Scotland, may be summarised as follows:   On 30 March 1984 a notice of citation under Section 75 of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") was served on the applicant to appear at the Sheriff Court, Dundee, on Monday 30 April 1984 for a diet of trial at which the applicant was to answer an indictment on ten charges of fraud and one charge relating to the Bail Act.   The applicant was not present at his home and the notice of citation and the indictment were served by a police officer leaving them with his father at the applicant's address.   The warrant of citation relating to these offences had been issued on 21 March 1984, fixing the date of the trial diet for 30 April 1984.   In accordance with Sections 75 and 111A of the 1975 Act, a notice of citation must call upon the accused to appear and answer to the indictment at a trial diet "not less than 29 clear days after the service of such indictment and notice", and where the last day of the notice period falls on a Saturday, Sunday or court holiday such period shall extend to and include the next day which is not a Saturday, Sunday, or a court holiday.   The applicant contends before the Commission that the last such day for good service was 29 March 1984, and that accordingly no service was effected on him at all by the purported service on 30 March 1984, since such service was not capable of being effective in respect of the predetermined trial date of 30 April 1984.   This argument was not raised by the applicant at his trial.   The trial was duly held before the Dundee Sheriff's Court, and he was convicted on 11 May 1984 of all ten charges of fraud and the charge of contravening the Bail (Scotland) Act 1980.   The applicant was remitted to the High Court for sentence, and on 23 May 1984 was sentenced to four years' imprisonment in respect of the fraud charges and a concurrent term of three months' imprisonment in respect of the Bail Act charge.   On 14 May 1984 the applicant lodged notice of intention to appeal, followed on 28 May 1984 with a note of appeal against conviction and sentence.   The applicant's attention was drawn to publicity surrounding the "29 clear day rule" concerning the period between service of the notice of citation and the trial diet, arising from the case of McDonald and others, in which the High Court gave an opinion on 10 July 1984.   This motion arose from the decision of the High Court on 19 and 20 June 1984, when objection had been taken at the trial to the failure to allow 29 clear days to the defendant between service of the citation and the trial diet.   The Crown had objected that such a challenge to the validity of the trial should have been made, pursuant to Section 76 of the 1975 Act, by way of a preliminary diet before the trial diet.   Section 76 applies, inter alia, to matters "relating to the competency or relevancy of the indictment or ... an objection such as is mentioned in Section 108 (1) of the Act ... ".   Section 108 (1) provides that:   "no objection by the accused to the validity of the citation against him, on the ground of any discrepancy between the record copy of the indictment and the copy served on him, or on account of any error or deficiency in such service copy, or in the notice of citation, shall be competent except by leave of the court on cause shown, unless its intention to raise the objection is stated in the notice under Section 76 (1) (a) of this Act and no such discrepancy, error or deficiency shall entitle the accused to object to plead to such indictment unless the Sheriff shall be satisfied that the same tended substantially to mislead and prejudice the accused."   The question which arose for determination in the McDonald case was therefore whether the failure to allow 29 clear days resulted in the absolute nullity of the proceedings, or whether it was a defect in the citation and trial which could be waived by the accused; that is, whether the words "any error or deficiency ... in the notice of citation" in Section 108 (1) of the 1975 Act, relate only to errors and deficiencies in the form of the notice of citation, or whether they apply also to notices which are erroneous or defective because they call upon the accused to appear and answer an indictment on a date prior to the completion of the period prescribed by Section 75, read with Section 111A, of the 1975 Act.   The High Court held that the defect in question was one which was covered by Section 108 (1) of the 1975 Act.   Such an error on the face of the citation rendered it invalid, but such invalidity did not have the consequence that the proceedings as a whole were a nullity. The citation was flawed by a failure to observe certain conditions, but it did not cease to be a citation for that reason.   Accordingly, the accused's failure to raise objection to the insufficiency of the time between citation and trial diet prior to the latter as required by Section 76 of the 1975 Act amounted to a waiver.   In the light of this decision, the applicant submitted supplementary grounds of appeal on 18 October 1984, contending that his case was distinguishable from that examined in the McDonald case. He submitted that, in view of the terms of the warrant of citation issued on 21 March 1984, fixing the date of the trial diet for 30 April 1984, it was not possible for service to be effected upon him at all after 29 March 1984.   He contended that failure to serve an indictment is fatal to any subsequent proceedings and cannot be waived by an accused's appearance at the trial.   Consequently, his trial had been a nullity and the Court had no authority to convict and sentence him.   The applicant's appeal was heard and dismissed on 8 November 1984, when the High Court chose to follow their decision in the McDonald case.   As a result, since he had failed to object to the period between citation and trial diet prior to his trial, the applicant was regarded as having waived that objection.   The Court stated that:   "as a matter of fact no objection was taken or was sought to be taken at a preliminary diet.   No attempt was made to raise the question of due notice of the trial diet before the appellant tended a plea and what is even more important, bearing in mind that the issue of prejudice is relevant, it was not even thought worthwhile to move for an adjournment of the trial diet upon the ground of lack of time for preparation.   In all these circumstances the point raised in the additional ground is not open to the appellant and even if it is open to the appellant it is unsound in the light of the decision in McDonald and must be rejected".   After his conviction and pending the hearing of his appeal the applicant applied to the High Court for interim liberation on 12 July 1984.   His application was refused, but in view of the applicant's contention that he would be handicapped in researching for his appeal if not released, the Court told the applicant that the Court Clerk would be instructed to write to the prison authorities about this matter.   The Clerk to the Court therefore wrote to the the Director of Scottish Prisons on 16 July 1984 as follows:   "J.W. R.,APPELLANT v HER MAJESTYS ADVOCATE, RESPONDENT   The above named Appellant appeared before the High Court here on 12th July 1984 to argue his application for bail pending the hearing of his substantive appeal against his conviction at Dundee Sheriff Court on 23rd May 1984 - the appeal will probably be heard in September 1984.   Their Lordships refused the application for bail; however R. during his address to the Court indicated that he would find it difficult in prison to gain access to the appropriate reference works to help him prepare his appeal against conviction.   Although the Court refused bail they told Mr. R. that they would instruct the Clerk of the Appeal Court to write to the prison authorities about that particular matter.   Accordingly, on the instructions of the Appeal Court, I am writing to you to request that you do what you can to have R. given access to such law reference works as are necessary for the preparation of his appeal.   R. was sentenced on 23rd May 1984 at Edinburgh by the Lord Justice Clerk to four years imprisonment and is presently at Perth prison.   Yours faithfully,".   The applicant wished to prepare his own appeal because it was unlikely that he would receive legal aid, although he had applied for it.   His solicitors had initially advised the applicant not to appeal and that legal aid would probably not be available.   It appears however that an application for legal aid was submitted at some stage but that it was unsuccessful since counsel had failed to supply a supporting note.   The applicant contends that on 13 July 1986 he submitted a list of the materials he required, consisting of four legal textbooks, three statutes in force, and 13 case reports.   He had received none of the materials requested by 26 July 1984 and consequently renewed his application for interim liberation on the ground that he had insufficient facilities for his legal research.   This renewed application was rejected on 17 August 1984 because his earlier application of 12 July had exhausted his rights of application.   The Governor of Perth Prison wrote to the High Court on 30 July 1984 stating that the Prison had made considerable effort to satisfy the applicant's requirements and had supplied certain material, while trying to obtain more.   On 16 August 1984 Prison Headquarters informed the Court that the applicant had requested the following books:   1.       Renton and Brown's Criminal Procedure 5th Edition (1983) 2.       Walker and Walker Law of Evidence in Scotland 3.       Hume's Criminal Law Vols.1 and 2 4.       The Criminal Justice (Scotland) Act 1980 5.       Copy of Amendments to the Acts of Adjournal 6.       Statute Law Revision (Scotland) Act 1906 7.       Statute Law Revision (Scotland) Act 1964   On 20 July 1984 the librarian officer at Perth Prison reported to the Governor that the public libraries in Perth had been contacted in respect of number 1, 2 and 3 but that they did not have them. Similarly, the Procurator Fiscal 3 had been approached , but was not in a position to lend his copies, since he needed them for his own use.   The assistant Governor contacted the Justiciary Office, who suggested that the Prison should buy numbers 1 and 2, but that number 3 was unobtainable.   This the Prison did, and numbers 1 and 2 were then lent to the applicant before 16 August 1984, together with the Prison's copy of number 4.   Since the latter was in constant use, the applicant was only able to borrow it overnight, but the Prison has no record that the applicant objected to this arrangement.   In addition the Prison supplied the applicant with the opinion of the High Court of Justiciary in two cases directly relevant to his appeal, Swift and McDonald.   In an effort to acquire the remainder of the legal texts necessary for the preparation of his appeal the applicant wrote several letters to the Clerk of Justiciary, to which he did not receive replies.   He then petitioned the Nobile Officium of the High Court on 4 September 1984. However, a reply sent to the Governor of Perth Prison and dated 7 September 1984 said that this petition was not acceptable.   The applicant requested a copy of this letter and was refused.   At the beginning of September 1984 the applicant was assured by a new Assistant Governor of the prison that the matter had been referred to the Clerk of Justiciary, to whom the applicant again wrote without receiving a reply.   Since he had still not received all the material requested the applicant petitioned the Secretary of State on 4 October 1984.   He received assurances from the Governor and the Assistant Governor of the Prison that something would be done, but he had still received no further legal materials by 1 November 1984.   He petitioned the Secretary of State once more on that date, but he had received no reply prior to the hearing of his appeal on 8 November.   The applicant further petitioned the Secretary of State on 14 and 27 November and 12 December 1984 requesting a referral of his case back to the Appeal Court or the exercise of the prerogative of mercy. These various petitions were refused on 23 January 1985.   A further petition dated 28 January 1985 requesting a reconsideration of the matter has not yet been answered.   On 8 January 1985 the applicant received a letter dated November 1984 in which the Secretary of State refused his petitions concerning the legal materials he had sought for his appeal.   The applicant wrote to the Secretary of State on 10 January 1985 enquiring when the reply was sent and after what sort of "discussions" (as mentioned in the letter) the decision to refuse him access to legal texts had been taken.   No reply has yet been received.   COMPLAINTS   The applicant complains of breaches of Articles 5 and 6 (Art. 5, art. 6) of the Convention.   As regards Article 5 (Art. 5) the applicant claims that his imprisonment following conviction by the Dundee Sheriff's Court on 30 April 1984 does not satisfy any of the separate requirements of Article 5 (Art. 5).   He was not lawfully detained after conviction by a competent court (Article 5 para. 1 (a) (Art. 5-1-a)) because the effect of the incorrect service of the indictment and warrant of citation was to render the subsequent proceedings null and void.   As regards Article 6 (Art. 6) he argues that the fact that since the service of the indictment and the warrant of citation upon him failed to provide him with the statutory minimum period before his trial, this amounts to a breach of Article 6 para. 3 (a) and (b) (Art. 6-3-a, art. 6-3-b).   Moreover, the failure of the prison authorities to provide him with the various legal texts and case reports requested by him for the preparation of his appeal is alleged to be a breach of Article 6 para. 3 (b) (Art. 6-3-b).   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 19 November 1984 and registered on 18 February 1985.   On 6 May 1985, the Commission decided to bring the application to the notice of the respondent Government in respect of the applicant's complaints under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention and to invite them to submit written observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.   The Government's observations were submitted on 10 September 1985. The applicant replied on 15 October 1985, but following the appointment of a lawyer to represent him, further observations were submitted on 1 May 1986.   SUBMISSIONS OF THE PARTIES   A.       THE RESPONDENT GOVERNMENT   1.       The facts   The applicant has produced a list of textbooks, statutes and case reports which he says he submitted to the prison authorities on 13 July 1984.   The Government have no record of receiving such list and submit that if one had been submitted, it would have been preserved and acted upon.   So far as the Government were aware, any requests for legal materials were made informally and the prison authorities went to some trouble to secure the books which were requested.   The applicant states that, at the appeal hearing on 8 November 1984, he complained that he had not been provided with sufficient legal materials.   The Government submit that the Opinion of the Court does not indicate that he complained of this or requested an adjournment on this account.   The Clerk of the Court and the Crown Office have no recollection of his complaining or asking for an adjournment on that account.   The possibility of applying for such an adjournment had been drawn to the applicant's attention in the letter of 4 September 1984 from the Clerk of the Court.   The Government make the following comments regarding the materials requested by the applicant.   Renton and Brown is the standard textbook on criminal procedure and Walker and Walker is the standard work on evidence.   Hume's Criminal Law is one of the "institutional writings" which first set out Scottish criminal law systematically.   It was published in 1797 and had several editions in the 19th century.   While it is very authoritative, its relevance to present day evidence and procedure is limited and unlikely to provide any relevant information which could not be obtained from Renton and Brown or Walker and Walker.   The Criminal Justice (Scotland) Act 1980 contains, among other matters, provisions in respect of evidence and procedure. Amendments to the Acts of Adjournal are amendments to the rules of procedure of the criminal court.   In fact, procedure in solemn proceedings is generally set out in the Criminal Procedure (Scotland) Act 1975 itself.   Updated texts of any relevant acts of adjournal are set out in Renton and Brown.   The Statute Law Revision Acts are Acts repealing obsolete statutes.   Those listed appear to have no possible relevance to this case.   One is almost entirely repealed itself and the other repeals Acts of the old Scottish Parliament before 1707.   2.       Relevant domestic law and practice   The Government state that there is no specific statutory or case-law on the subject of the rights of prisoners to have access to legal materials in preparing for court proceedings.   However, Scots Law recognises the general principle that a person is entitled to a fair hearing before the court, including an adequate opportunity to prepare his case.   A criminal court can adjourn a hearing, on the motion of a party, if they consider this desirable in the interests of justice.   This can be done when the applicant has not had an adequate opportunity to prepare his case, for instance if he has had insufficient time or certain witnesses or documents have not been available.   In principle, this remedy should also be available where a person has not had an adequate opportunity to prepare his case because he has been unable to obtain access to legal materials which he requires.   The Prison (Scotland) Rules 1952, and the Standing Orders giving instructions on implementation of the rules, include provisions regarding prisoners who are appealing against conviction or sentence, and the facilities to be made available to them.   In particular, Rule 132 para. 1 provides:   "An appellant shall be allowed all reasonable facilities, including the provision of writing materials, for communicating by letter with his relatives and friends or for conducting correspondence or preparing notes in connection with his appeal".   This provision is repeated in Standing Order Kb23 5 (a). However, there is nothing specifically in rules and standing orders about the provision of legal materials.   This simply reflects the infrequency of requests for legal materials by appellants.   3.       Admissibility and merits   The Government submit that the applicant was in fact given adequate facilities for the preparation of his defence.   The word "facilities" is qualified by the adjective "adequate" and it is clear from the Commission's case-law that the facilities which must be granted are restricted to those which assist or may assist him in the preparation of his defence (Jespers v. Belgium, Application No. 8403/78, Comm. Rep. 14.12.81, D.R. 27 p. 61).   The obligation under Article 6 para. 3 (b) (Art. 6-3-b) to ensure the right of a person charged to have facilities for the preparation of his defence does not require a Government itself to provide a person who is at liberty with whatever legal materials he may wish.   Any layman may experience difficulties of a practical nature in having access to certain legal authorities and textbooks.   The fact that a person is in prison and thus not at liberty to gather his own materials cannot impose upon the Government any greater obligation than to provide such materials as a person could reasonably have acquired had he been at liberty, having regard to the local circumstances.   The obligation should, moreover, only relate to materials which are relevant and necessary to the case.   This obligaton the Government submit that it has met.   The Government submit that the applicant was supplied with up to date editions of the standard textbooks on court procedure and evidence. An examination of the grounds of appeal lodged by the applicant reveals that many of the grounds consist of allegations that various events prejudiced the fairness of his trial and do not raise difficult questions of law requiring much research.   Insofar as his appeal raised questions of evidence or procedure, the Government submit that the availability of Walker and Walker and Renton and Brown would be adequate.   In respect of the most difficult point raised in his grounds of appeal, namely, whether the deficiency of the service of the Court invalidated the whole proceedings, the applicant had been supplied with the opinion of the Court of Criminal Appeal in McDonald, which reviewed the relevant authorities and dealt with facts essentially indistinguishable from those of the applicant's case.   The Government argues that further legal research would have been pointless.   The Government also submit that the applicant has failed to exhaust domestic remedies in respect of this complaint.   It would have been possible for the applicant to ask for an adjournment of the appeal proceedings on the grounds that he had not had an adequate opportunity to prepare his case and the Court could have granted an adjournment if satisfied that that was desirable in the interests of justice.   The letter from the Clerk of Court to the Prison Governor, dated 7 September 1984, pointed out that this was the appropriate means.   The Government submit that it is not established that at the appeal the applicant asked for an adjournment or complained about lack of opportunity to prepare his case.   For these reasons the Government request the Commission to declare that the applicant's complaint under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention is manifestly ill-founded or that there has been no breach of the Convention.   B.       THE APPLICANT   1.       The facts   The applicant contends that he made a formal request for materials by presenting a list in writing on 13 July 1984 to the prison authorities and denies that the list of requirements acknowledged by the respondent Government is an accurate account of the materials requested.   The applicant also states that there is no indication that the prison authorities attempted to obtain the required texts from any specialist, court or university libraries.   The applicant contends that he did complain to the Appeal Court concerning his lack of access to legal materials in his additional grounds of appeal and that he made a verbal submission on the point but was told by the Court to be silent.   The applicant admits that Renton and Brown and Walker and Walker are standard textbooks, but states that they contain many case references and footnotes; without access to the material in these footnotes, they were inadequate in themselves in preparing the applicant's appeal. The applicant states that Hume's Criminal Law is a very authoritative text and that access to the various statutes requested was essential. He contends that his requests were for the minimum required for such an appeal and that none of his requests lacked relevance.   2.       Relevant domestic law and practice   The applicant complained both orally and in writing to the Court of Appeal that he had been denied access to necessary legal texts and did request an adjournment.   These applicatons were refused.   Rule 132 para. 1 of the Prison (Scotland) Rules 1952 requires a prisoner to be allowed all reasonable facilities in the preparation of his appeal.   The applicant submits that the respondent Government did not comply with this rule and that omission of a specific provision concerning access to legal materials is a serious defect in the Rules.   3.       Admissibility and merits   A person in prison is not at liberty to gather his own materials and there is accordingly a greater obligation on the respondent Government to provide necessary materials than if he was at liberty.   The applicant requested four textbooks but was supplied with one only. The crucial statute he requested was available for one night only.   He was not supplied with any of the thirteen precedents requested.   All of the applicant's grounds of appeal required substantial research and reading for their preparation.   The prison authorities could have obtained the relevant materials with little effort.   The applicant's appeal included a ground of appeal not covered by the opinion in McDonald and on which McDonald could have been distinguished.   He required further materials to research this point but was denied them. It was perhaps for this reason that the Court ignored this point in their opinion.   The applicant submits that he has exhausted domestic remedies, since he did request an adjournment on the grounds that he had not had an adequate opportunity to prepare his case.   THE LAW   1.       The applicant complains that he is   not lawfully detained since the incorrect service of the indictment and warrant of citation rendered null and void the proceedings in which he was convicted and sentenced.   Article 5 (Art. 5) of the Convention provides inter alia that:   "1.      Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:   a)   the lawful detention of a person after conviction by a competent court;...".   The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g. decisions on the admissibility of applications No. 458/59, Dec. 19.3.60, Yearbook 3 pp. 222, 236 and No. 1140/61, Dec. 19.12.61, Collection of Decisions 8 pp. 57, 62).   The Commission recalls in the present case that the applicant raised the argument that his trial was null and void in the appeal proceedings before the High Court of the Justiciary.   The High Court however followed its previous decision in the McDonald case which held that such errors did not result in the absolute nullity of proceedings and found that since the applicant had failed to object to the errors prior to his trial, he must be regarded as having waived that objection.   This interpretation is a matter of Scottish law.   Although the applicant's alternative interpretation which he urged in the course of his appeal might have some force, it is not the case that the High Court either ignored or misunderstood his line of argument but that the Court preferred to follow the line of reasoning adopted in the case of McDonald.   The Commission concludes therefore that this complaint fails to disclose any appearance of a violation of Article 5 (Art. 5) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that the failure to allow him the statutory minimum time between service of the indictment and his trial constituted a violation of Article 6 para. 3 (a) and (b) (Art. 6-3-a, art. 6-3-b) of the Convention.   Article 6 para. 3 (a) and (b) (Art. 6-3-a, art. 6-3-b) of the Convention provide that:   "3.   Everyone charged with a criminal offence has the following minimum rights:   (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;   (b) to have adequate time and facilities for the preparation of his defence;...".   The Commission recalls however that the indictment was served on the applicant on 30 March 1984 and that his trial began on 30 April 1984. While this gave the applicant less than the "29 clear days" notice required by statute, it does not appear from the facts of the application that the applicant was not informed in detail of the nature and cause of the charges against him or that he had insufficient time to prepare his defence.   The Commission notes that the applicant did not complain in the trial proceedings that he had had insufficient time or request an adjournment in order to gain more time.   The Commission accordingly concludes that on the facts of the present application there is no appearance of a violation of Article 6 para. 3 (a) or (b) (Art. 6-3-a, art. 6-3-b) of the Convention.   It follows that this part of the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant also complains that the failure of the prison authorities to provide him with various legal texts and materials deprived him of adequate facilities in the preparation of his appeal.   The Commission must first consider whether Article 6 (Art. 6) of the Convention is applicable to the applicant's hearing before the Court of Appeal.   Article 6 para. 1 (Art. 6-1) provides:   "1.      In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".   Article 6 para. 3 (b) (Art. 6-3-b) of the Convention provides:   "3.      Everyone charged with a criminal offence has the following minimum rights:   b)   to have adequate time and facilities for the preparation of his defence;...".   The Commission recalls that in its judgment in the Delcourt case, the European Court of Human Rights pointed out that Article 6 para. 1 (Art. 6-1) of the Convention does not compel the Contracting States to set up courts of appeal or of cassation but that, nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (Art. 6) (Eur. Court H.R. Delcourt judgment, Series A No. 11 para. 25).   Thus, the Commission considers that, although Article 6 (Art. 6) does not guarantee an appeal in criminal proceedings, where the opportunity to lodge an appeal in regard to the determination of a criminal charge is provided under domestic law, the guarantees of Article 6 (Art. 6) continue to apply to the appeal proceedings, since those proceedings form part of the whole proceedings which determine the criminal charge at issue (Application No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96).   The applicant contends that he requested a number of legal textbooks, statutes and case-precedents in order to enable him to prepare for his appeal.   It appears from the submissions of the parties that the applicant was in fact supplied with two legal textbooks, two case-precedents and given access overnight to the prison copy of a statute.   The applicant complains that these were not sufficient for his purposes since he required access to other materials in order to research particular grounds of appeal.   He further complains that while the prison authorities may have made some efforts to locate materials, they did not take all possible steps, for example, they do not appear to have approached university or specialist libraries.   However, in Article 6 para. 3 (b) (Art. 6-3-b) of the Convention, the word "facilities" is qualified by the adjective "adequate".   The Commission recalls its constant case-law to the effect that the facilities which must be granted to the accused are restricted to those which assist or may assist him in the preparation of his defence (see e.g. Jespers v. Belgium, Comm. Report 14.12.81, para. 57, D.R. 27 p. 61).   The Commission also recalls that the specific guarantees laid down in Article 6 para. 3 (Art. 6-3) of the Convention cannot be looked at in isolation.   "They exemplify the notion of fair trial in respect of typical procedural situations which arise in criminal cases, but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole.   The guarantees enshrined in Article 6 para. 3 (Art. 6-3) are therefore not an aim in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings" (Can v. Austria, Comm. Report, 12.7.84).   The Commission must therefore also consider the applicant's complaints under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention in light of the overriding purpose of fairness laid down in Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission recalls that the applicant was detained in prison prior to his appeal, which prevented him from searching out his own legal materials for his appeal.   The Commission notes that the High Court of Justiciary instructed the prison authorities to do what they could to give the applicant access to such law reference works as were necessary for the preparation of his appeal.   The applicant was subsequently supplied with a number of materials, but not all of the works which he requested.   The Commission is of the opinion however that there must be acknowledged to be practical limits to the steps which the prison authorities could reasonably be expected to undertake to find materials for the applicant's research.   The Commission recalls in this respect that the prison contacted the local libraries, the Procurator Fiscal and the Justiciary Office and that they took the step of buying two textbooks for the applicant's use.   The Commission also recalls that the applicant was nonetheless able to argue his points of appeal before the Court at his hearing on 18 October 1984 and to raise the issue of the possible nullity of proceedings for the consideration of the Court.   The Court stated in its Opinion that the issue of nullity had been set out at considerable length in the applicant's grounds of appeal and had been developed further before them in oral submissions; the Court summarised his arguments in their decision but held that they were bound to follow the leading case of McDonald.   The Commission is therefore of the opinion that on an evaluation of the proceedings as a whole it has not been established that the applicant was not given adequate facilities for the preparation of his appeal or that he did not receive a fair hearing before the appeal court as a result of any lack of legal materials for his research.   An examination of the proceedings as a whole accordingly does not disclose any appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention read in conjunction with Article 6 para. 1 (Art. 6-1) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission   DECLARE THE APPLICATION INADMISSIBLE.   Deputy Secretary                         President to the Commission                        of the Commission   (J. RAYMOND)                             (C.A. NØRGAARD)