CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mars 1988

.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 }  AS TO THE ADMISSIBILITY     Application No. 12509/86 by Mohamed CHOUDHARY against the United Kingdom             The European Commission of Human Rights sitting in private on 3 March 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 9 July 1986 by Mohamed CHOUDHARY against the United Kingdom and registered on 17 October 1986 under file No. 12509/86;           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 applicant is a British citizen born in 1953 and resident in Telford.   He is currently serving a prison sentence in H.M. Prison Gartree and is represented by Mr.   Brodie, a solicitor.           The facts as submitted by the applicant may be summarised as follows.           On 19 November 1984, the applicant was arrested at his home and taken 200 miles to Ipswich.   It appears that he was not questioned but charged immediately.   The same day, he appeared before Ipswich magistrates' court who remanded him in custody for seven days on a charge concerning the importation of a controlled drug, i.e. 39.94 kilos of diamorphine approximately valued at £5.5 million.   He was thereby joined in the case of four other co-defendants, one of whom was his brother, who had been detained on remand since June 1984.   He was refused access to a solicitor but was told that his solicitor had been contacted.   While being held on remand, the applicant also wrote to his wife asking her to contact his solicitor.           On 25 November 1984, after six days in custody, the applicant briefly saw his solicitor.   He saw his solicitor again the next day before going into court.   A bail application was made unsuccessfully on his behalf and he was again remanded in custody.   On 29 November 1984, the applicant saw his solicitor at Ipswich Crown Court for a six hour conference.   On 30 November 1984, he was informed that the trial would commence in the Crown Court on 3 December 1984.   On 21 November 1984, the Court had granted leave for a voluntary bill of indictment in place of the usual committal proceedings.           The solicitor who represented the applicant represented his brother too.   He visited them both and endeavoured to prepare the applicant's defence with the assistance of the applicant's wife and an Enquiry Agent.   After the voluntary bill of indictment had been prepared he applied for an adjournment of the applicant's case, but was refused in view of the length of time which his co-defendants had already spent in prison.   His solicitor stated that the applicant saw all the available depositions before his trial though additional notices of evidence were served later during the trial by the prosecution.   The trial judge also allowed each request by defence counsel during the trial for time to pursue and take instructions concerning certain new evidence presented during the trial itself. Defence counsel (QC and junior) for the first time, and the solicitor for the second time interviewed the applicant just before the trial began on 3 December 1984.   The interview lasted most of the morning and the early part of the afternoon.   There were further conferences during the course of the trial.           The trial lasted nearly three weeks, until 21 December 1984, when the applicant was found guilty of the offence under S. 172 of the Customs and Excise Management Act and sentenced to thirteen years' imprisonment.           Counsel and the solicitor advised the applicant that he had no grounds for an appeal.   In particular counsel apparently advised that, despite the difficulties created for the defence, the short preparation time prior to the trial was not a basis for an appeal.   The applicant sought legal advice from three other firms of solicitors, not only as regards an appeal but also as regards alleged incompetence by the first solicitor.   Further counsel's opinion advised that there were no grounds of appeal against conviction and sentence.   Nevertheless, on 22 April 1985, the applicant lodged an application for leave to appeal, together with two co-defendants, including his brother.   The applicant appears to have received legal advice about his appeal and about a possible professional negligence claim against his first solicitor until, at least, March 1986.   The applicant claims that legal aid concerning his appeal was terminated on 22 April 1985.           The applicant's application on 22 April 1985 for leave to appeal was first refused by a single judge of the Court of Appeal who took the view that the trial judge's decision to refuse an adjournment was within his discretion.   The applicant renewed his application to the Full Court of Appeal, who refused leave to appeal on 13 May 1986. It appears that the matter should have been heard on 11 February 1986, but the solicitor of the applicant's brother (with whose case there may have been some confusion on appeal) had obtained an adjournment. The applicant was not himself represented at the leave to appeal hearing and was refused legal aid and permission to attend.   The applicant was informed on 21 May 1986 that he had no right of appeal to the House of Lords.     COMPLAINTS           The applicant complains of violations of Articles 4, 5 and 6 of the Convention, in particular as regards Article 5, in that he has been deprived of his liberty on the basis of a wrongful conviction.           As regards Article 6 he contends that he did not have adequate time and facilities for the preparation of his defence and that he did not have sufficient sight of witness statements before his trial in order to prepare his defence and obtain the attendance and examination of witnesses, on his behalf.   He further complains of not receiving legal aid to enable his appeal to be set out correctly and successfully.     THE LAW   1.       The applicant complains that he did not have sufficient sight of witness statements before his trial in order to prepare his defence and obtain the attendance and examination of witnesses on his behalf. He also complains of insufficient time to prepare his defence before his trial and of not seeing his solicitor until six days after his arrest.           Article 6 para. 1 (Art. 6-1) of the Convention provides that:           "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..."           Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d) of the         Convention provide:           "Everyone charged with a criminal offence has the         following minimum rights:           ...           (b) to have adequate time and facilities for the         preparation of his defence;           (c) to defend himself in person or through legal         assistance of his own choosing or, if he has not         sufficient means to pay for legal assistance, to         be given it free when the interests of justice         so require;           (d) to examine or have examined witnesses against him         and to obtain the attendance and examination of witnesses         on his behalf under the same conditions as witnesses         against him..."           The applicant contends that he did not have adequate time for the preparation of his defence and that he was not able to see his solicitor for six days after his arrest.           The Commission first of all recalls that in Article 6 para. 3 (b) (Art. 6-3-b) of the Convention the words "time" and "facilities" are qualified by the adjective "adequate".   As regards the applicant's complaint concerning access to his solicitor, the Commission observes that the Convention does not expressly guarantee the right of an accused to communicate freely with his defence counsel for the preparation of his defence, though the fact that this right is not specifically mentioned does not mean it may not be implicitly inferred from its provisions, in particular those of Article 6 para. 3 (b) and (c) (Art. 6-3-b-c).   The right for an accused to communicate with his lawyer has been recognised by the Commission as a fundamental part of the preparation of his defence. However such a right to have conversations with one's lawyer and exchange confidential instructions, as implicitly guaranteed by Article 6 para. 3 (Art. 6-3), cannot be said to be insusceptible of restriction (see e.g.   Can v.   Austria, Application No. 9300/81, Comm.   Rep 12.7.84 Eur.   Court H.R., Series A no. 96 p. 17).   The Commission must therefore consider whether or not the particular restriction in the present case was in conformity with the Convention.   The Commission also recalls its constant case-law to the effect that the specific guarantees laid down in Article 6 para. 3 (Art. 6-3) cannot be looked at in isolation.   In this regard, the Commission has stated as follows:           "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,         Eur.   Court H.R., Series A No. 96 p. 15).           The Commission must therefore also consider the applicant's complaints under Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d) 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 notes that the applicant was arrested on 19 November 1984 and his trial began on 3 December 1984.   It appears that the applicant first saw a solicitor on 25 November 1984, only one week before his trial began and that the applicant's application for an adjournment, for more time to prepare his defence, was refused on the ground that his co-accused had already been held on remand for considerable time.           As regards the applicant's complaint that he was unable to see his solicitor for six days, an examination of the facts as submitted by the applicant reveals that the applicant was only refused access to his solicitor on 19 November 1984 from the time of his arrest to his appearance before the magistrates' court on the same day to be remanded in custody.   It appears that his solicitor was informed by the police of his arrest and that the applicant was also able to contact him through his wife.   There is no indication that after this initial period, the applicant's solicitor was prevented from seeing him by the authorities.   The Commission notes that the proceedings before the magistrate's court were public and the applicant could have been assisted by his solicitor or his agent if present or by any other solicitor present if he had wished.   Since it also appears that the applicant was not questioned by the police during the period immediately following his arrest when he was refused access to his solicitor, the Commission finds that the applicant has not established that this period was in any way of crucial relevance to the preparation of his defence or that he was prejudiced in any material way by the refusal of access during this period.           The Commission further recalls, in the context of the preparation for the applicant's trial that the applicant's solicitor visited the applicant several times before trial for lengthy interviews and was aided in his preparations by the applicant's wife and an enquiry agent.   The Commission notes that the applicant's solicitor was also acting for the applicant's brother, who had been arrested earlier, and would therefore have already been acquainted with the facts of the case.   It also appears that, while the judge refused an adjournment, he did grant each application made by the applicant's counsel for time to take instructions concerning new evidence presented during the trial.   It also appears that the applicant was able to raise the issue of insufficient time to prepare his defence in his appeal but that the Court of Appeal found that the judge had acted within his discretion.           As regards the applicant's complaint concerning the witness statements, it appears that in fact his solicitor did enable the applicant to see all witness statements available before his trial. In these circumstances the Commission finds that the applicant has failed to substantiate his complaint that he had inadequate time and facilities to prepare his defence or that he was unable to obtain attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.   The Commission accordingly finds no appearance of a violation of Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d) of the Convention read in conjunction with Article 6 para. 1 (Art. 6-1) of the Convention in the proceedings conducted at first instance.   It follows that this part of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains of being refused legal aid for his applications for leave to appeal.           The case-law of the Commission and Court establishes that the guarantees of Article 6, including paragraph 3 (c) (Art. 6-3-c), are applicable to applications for leave to appeal (see e.g.   Eur.   Court H.R., Monnell and Morris judgment of 2 March 1987, Series A No. 115). The Commission notes first of all that the applicant had had the benefit of free legal advice regarding his appeal after his conviction and that he was able to submit written argument to the Court of Appeal. The Commission also recalls that in the case of Monnell and Morris (loc. cit.) the European Court of Human Rights came to the conclusion that the interests of justice and fairness could be met by the opportunity afforded to an applicant to present relevant considerations by making written submissions.           The Commission therefore concludes that in the circumstances of the present case there is no appearance of a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention and 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.   3.       The applicant also complains of a violation of Articles 4 and 5 (Art. 4, 5) of the Convention in that he has been deprived of his liberty on the basis of a wrongful conviction.           The Commission has examined this complaint under Article 5 (Art. 5) of the Convention, which guarantees the right to liberty of person and which, in Article 5 para. 1 (a) (Art. 5-1-a), authorises the lawful detention of a person after conviction by a competent court.   It finds no evidence however to support the applicant's allegation that he has not been detained lawfully following conviction by a competent court.   The Commission therefore finds no 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.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the Commission          President of the Commission                 (H.C. KRÜGER)                       (C.A. NØRGAARD)