CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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 OF                         Application No. 18123/91                       by W.W.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 14 October 1992, the following members being present:              MM.    S. TRECHSEL, President                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            MM.    F. MARTINEZ            MM.    L. LOUCAIDES                  J.-C. GEUS                    Mr. K. ROGGE, Secretary to the Second Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 October 1990 by W.W. against the United Kingdom and registered on 24 April 1991 under file No. 18123/91;         Having regard to   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       15 July 1992 and the observations in reply submitted by the       applicant on 24 August 1992;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a British citizen born in 1968.   He is currently serving a sentence of imprisonment at Shotts Prison, Lanarkshire. He is represented by Anthony Mahon, a solicitor practising in Glasgow.         The facts as submitted by the parties may be summarised as follows.         The applicant and his brother stood trial at Glasgow High Court for attempted murder and various other offences on 22 February 1989.         The counsel instructed by the applicant's solicitor had to withdraw on the eve of the trial. The applicant met his replacement for the first time on the morning before the trial began. He requested that counsel move for an adjournment to ensure adequate preparation of the case. Counsel however did not make any application for an adjournment when the proceedings commenced.         The applicant was identified in court as one of the victim's assailants by three eye-witnesses.   One of these eye-witnesses had been accompanying the victim on 6 November 1988, the day of the attack. This eye-witness had pointed out the applicant at an identification parade which was held on 11 November 1988. The applicant had legal representation when he took part in the identification parade .         The applicant was convicted of attempted murder on 24 February 1989.   He was sentenced to 10 years' imprisonment for the offence.         The applicant applied to the Scottish Legal Aid Board for legal aid for the purpose of appealing against his conviction and sentence. His application was refused on 7 September 1989 on the basis that the appeal appeared to be without merit.   The applicant proceeded to conduct his own appeal.         On 13 October 1990 the High Court of Justiciary adjourned the hearing of the applicant's appeal so that the applicant could provide and investigate evidence on the question of perjury of an essential Crown witness.         On 25 October 1989 solicitors acting on the applicant's behalf submitted a fresh application for legal aid.   This application was refused on 1 November 1989 since it did not point to substantial grounds of appeal.   This view was taken in light of the fact that the aforesaid solicitors did not provide any evidence to indicate that perjury had in fact been committed.         The applicant presented his appeal on 14 June 1990.   He requested another adjournment in order to request legal aid again.   However his request was refused by the Court. The applicant addressed the Court for 1 1/2 hours and made numerous submissions in support of lengthy grounds of appeal.         It appears from the transcript of the appeal court's judgment that the applicant's grounds of appeal against conviction included complaints concerning the conduct of the defence by his counsel, that the trial judge had misdirected the jury on a number of occasions, that the police had failed to conduct properly an identification parade in which the applicant appeared, that the jury's verdict was inconsistent and that the conviction rested solely on eye-witness evidence.         The Court dismissed the applicant's appeal against conviction and sentence and, in the process of so doing, stated that the applicant had "wholly failed to satisfy it that there was any miscarriage of justice". As regarded his complaints about his counsel, the Court found no substance in the criticisms made and referred to the note of the trial judge which described the defence as "excellent".   COMPLAINTS         The applicant complains that he did not have adequate time and facilities for the preparation of his defence contrary to Article 6 para. 3 (b) of the Convention in that he only met the replacement defence counsel on the morning of the opening day of the trial and that counsel failed to request an adjournment to ensure the adequate preparation of the case.         The applicant complains that his rights under Article 6 para. 3 (d) of the Convention were violated in that counsel appearing on his behalf failed to call certain witnesses and to lead in evidence certain productions.         The applicant also contends that his rights under Article 6 para. 3 (c) of the Convention were violated by virtue of the fact that he was denied legal aid for the purposes of appealing against his conviction and sentence.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 October 1990   and registered on 24 April 1991.         On   2 April 1992, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.         The Government's observations were submitted on 15 July 1992 after one extension in the time-limit and the applicant's observations in reply were   submitted on 24 August 1992.   THE LAW   1.     The applicant complains that he was refused legal aid for his appeal. He invokes Articles 6 para. 3 (c) (Art. 6-3-c) in this respect.         Article 6 para. 3 (c) (Art. 6-3-c) provides :         "(3) Everyone charged with a criminal offence has the following       minimum rights:...         (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;"         The Government have made no observations as regards the admissibility of this part of the application.         The Commission has made a preliminary examination of the merits of the complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention. It considers that this complaint raises serious issues of fact and law which can only be resolved by an examination of the merits. The complaint cannot therefore be declared manifestly ill- founded under Article 27 para. 2 (Art. 27-2) of the Convention, but must be declared admissible, no other ground of inadmissibility having been established.   2.     The applicant   complains also that his counsel was not properly prepared and failed to apply for an adjournment and to call certain witnesses and evidence.         However, under Article 25 para. 1 (Art. 25-1) of the Convention, the Commission may only receive an application from a person, non- governmental organisation or group of individuals where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set out in the Convention and where that Party has recognised this competence of the Commission. The Commmission may not, therefore, receive applications directed against private individuals. In this respect the Commission refers to its established case-law ( see e.g. No. 172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215; No. 852/60, Dec. 19.9.61, Yearbook 4 pp. 346, 352; No. 3925/69, Collection 32 pp. 56, 58; No. 4072/69, Dec. 3.2.70, Yearbook 13 pp. 708, 716; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 36).         The Commission recalls that the applicant complains in effect of the alleged conduct of his counsel. The Commission has examined the question of whether this conduct could entail the responsibility of the respondent Government. The Commission finds that the matters complained of relate in substance to the manner in which the applicant's counsel decided to conduct the defence - in particular, his decision as to whether an adjournment was necessary and as to which witnesses or productions would be of use to the defence. The Commission finds no indication from the facts as submitted that the applicant's solicitor failed properly to instruct the replacement counsel.   It further notes that the matter was brought to the attention of the appeal court which found the criticisms of counsel to be unfounded. In these circumstances, the Commission finds no ground on which the responsibility of the respondent State could arise.         It follows that this part of the application is manifestly ill- founded with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     For these reasons, the Commission unanimously     DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant's complaint under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention;   DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Second Chamber         President of the Second Chamber          (K. ROGGE)                           (S. TRECHSEL)