CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 septembre 1993

.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. 19599/92                       by S.K.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 1 September 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 20 December 1991 by S.K. against the United Kingdom and registered on 10 March 1992 under file No. 19599/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, who has both British and Irish nationality, was born in 1968.   He is represented before the Commission by Messrs. P. J. McGrory and Co., solicitors, Belfast.         The facts of the case, as submitted by the applicant's representative, and which are apparent from the documents lodged, may be summarised as follows.         The applicant was convicted on 30 March 1990 of the murder of two soldiers and of other offences.   He was sentenced to life imprisonment, the mandatory penalty for murder, and two periods of imprisonment in respect of the other offences.         The evidence against the applicant during his trial consisted of a number of eye-witness accounts, and also evidence from films and photographs taken by cameramen from various television companies, and a video recording taken from an army helicopter which was hovering overhead.         The judge found that the applicant had taken an active part in the events leading up to the death of the two soldiers, and further held:         "that [the applicant] contemplated that the murder of the       soldiers was one of the range of the crimes which might be       carried out by the persons who took charge of imprisoning the       soldiers.   I am satisfied that he intentionally lent his       assistance in order that those persons might commit some or more       of the crimes within that range, of which murder was a highly       probable one.   In addition, he took part in the detention of the       soldiers right up to the time when they were put over the wall       and assisted the group to carry one of them to the wall and put       him over.   At this stage it must have been entirely obvious that       the soldiers were being taken to their deaths.   On this ground       I am also satisfied that Kelly contemplated that they would be       killed.   I therefore hold that Kelly possessed the mens rea for       murder, and I find him guilty of counts 1 and 2 of the murder of       the two soldiers".         The applicant's appeal to the Court of Appeal was dismissed on 5 July 1991.   It was heard by Lord Justice Kelly who had previously considered the applicant's successful pre-trial application for bail. He held that the trial judge had misdirected himself with regard to one piece of identification evidence, but that the remainder of the evidence was so substantial and convincing that it could not be said that the applicant's conviction was unsatisfactory or unsafe.   With regard to the question of the screening of witnesses, the Court referred to the case of Murphy (1990) which had dealt with the question in depth.   COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in the following respects:   1.     He claims that his hearing was not fair in that the trial judge had heard a substantial number of bail applications relating to a number of other accused involved in various trials which arose out of the deaths of the two soldiers.   He also complains that Lord Justice Kelly, who heard his appeal, had also taken part in the decision on his bail application.   2.     He alleges that his hearing was not public because a substantial number of witnesses from the media were screened from him and the general public, thus preventing him from seeing those persons who were giving evidence against him.   3.     He considers that his hearing was not fair because of the way in which the prosecution presented video evidence.   4.     He contends that his hearing cannot be fair as he was charged with involvement of a peripheral nature but was liable to have the same sentence imposed on him as the principal perpetrator.   5.     Finally, the applicant regards as not fair the fact that the Court of Appeal, although finding that the trial judge had misdirected himself as to certain identification evidence, nevertheless went on to decide the case on appeal without giving the applicant a chance to put his case to another trial judge ab initio.     THE LAW   1.     The applicant alleges a violation of Article 6 (Art. 6) of the Convention in various respects.   Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:         "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 interest 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."         The Commission has had regard to the applicant's complaint that the trial judge had been involved in a substantial number of bail applications relating to other accused involved in various trials arising out of the deaths of the two soldiers.   The Commission has also had regard to the applicant's statement that the judge who heard his appeal, Lord Justice Kelly, had also been involved in his own pre-trial bail application.           The Commission considers that an allegation that a judge took part at an earlier stage of proceedings, whether those proceedings related to an applicant's own case or to a related case, must be taken as a complaint that that judge lacked impartiality.   The Commission notes that the allegation in the present case, made without further substantiation, is that the applicant was justified in his fears as to the impartiality of the trial judge and the appeal judge because of involvement in the trial of other persons accused of offences in connection with the deaths of the two soldiers (in the case of the trial judge) or because of involvement in the applicant's bail application (in the applicant's own case).         Given the objective nature of the test of impartiality where no bias is alleged (cf. Eur. Court H.R., Hauschildt judgment of 24 May 1989, Series A no. 154, p. 21 para. 46), the Commission sees no reason in the present case to conclude from the respective judges' earlier participation that there was justification for fears as to their impartiality.   In particular, with regard to the participation of Lord Justice Kelly in the determination of the applicant's pre-trial bail application, the Commission notes that the application was successful, and there is no indication that the judge formed, or even had the opportunity to form, an opinion as to the applicant's guilt.         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 alleges a violation of Article 6 (Art. 6) of the Convention in that a number of media witnesses were screened from him and the public.         The applicant did not raise this matter in his appeal to the Court of Appeal, but the Court of Appeal in its decision referred to the case of Murphy (1990) in which it had dealt with the question of screening.         The Commission has considered the ruling in Murphy in Application No. 20657/92 (Dec. 2.12.92).   In that case the Commission found that the screening of witnesses as undertaken did not violate Article 6 (Art. 6) of the Convention because of the guarantees which were supplied: in particular, although defendants could not see the screened witnesses, their representatives could see and put questions to the witnesses in the normal way.   The limitation on publicity caused by the screening was "in the interest of ... public order or national security" and "to the extent strictly necessary" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   In the present case, too, the evidence which the media witnesses could give was limited to questions concerning the making of filmed and photographic evidence, and did not itself implicate the applicant.   The applicant, through his representative, was able to put all the questions he wished to the witnesses concerned, even though neither he nor the public could see them.   Moreover, the public was able to hear the answers given by the witnesses, even if they could not see them.   Accordingly, the Commission finds that the screening of media witnesses did not prejudice the present applicant's rights under Article 6 (Art. 6) 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.   3.     The applicant alleges a violation of Article 6 (Art. 6) of the Convention in that the prosecution presented video evidence in a way he considers unfair.         The Commission recalls that Article 6 (Art. 6) of the Convention is intended to provide procedural guarantees relating to the proceedings as a whole.   The applicant does not contend that he was unable to put any criticisms of the prosecution presentation of video evidence to the trial court and to the Court of Appeal.   The assessment of evidence is in any event in the first place a matter for the domestic courts (cf. Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no.146, p. 31, para. 68).         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant sees a violation of Article 6 (Art. 6) in that, although he was accused only of aiding, abetting, counselling and procuring the persons who killed the two soldiers to commit that offence, he was nevertheless charged with murder, with the result that he was liable to an automatic, mandatory life sentence.   Consequently, although an accessory, he was sentenced as if he were a principal offender.         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. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         In any event, it is not the Commission's role to determine the substantive content of domestic law:   the trial judge was satisfied, given the applicant's involvement in the events leading up to the deaths, that the applicant had committed murder as defined in domestic law.         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.   5.     In connection with one of the applicant's grounds of appeal, the Court of Appeal found a misdirection by the trial judge but nevertheless decided the case without ordering a re-trial.   The applicant alleges a further violation of Article 6 para. 1 (Art. 6-1) of the Convention in this respect.           The Commission again recalls that its function in connection with Article 6 para. 1 (Art. 6-1) of the Convention is to consider the fairness of the proceedings taken as a whole (cf. the above-mentioned Barberà judgment).   In the present case, the Court of Appeal found a misdirection by the trial judge, but concluded that the remainder of the evidence was so substantial and convincing that the applicant's conviction was not unsatisfactory or unsafe.         Taking the proceedings as a whole, the Commission finds that they were not unfair in this respect.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                       (A. WEITZEL)