CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1996

.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. 22384/93                       by Kevin MURRAY                       against the United Kingdom          The European Commission of Human Rights sitting in private on 21 October 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              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 27 April 1993 by Kevin MURRAY against the United Kingdom and registered on 15 July 1993 under file No. 22384/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      2 March 1994;   -     the letter of 10 April 1996 from the applicant's representative      stating that no further observations were to be submitted.   -     the supplementary observations submitted by the respondent      Government on 10 May 1996.        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1970 and presently detained in the Maze Prison, Northern Ireland.   He is represented by Messrs. John Fahy & Company, a firm of solicitors practising in Strabane, County Tyrone.   a.    The particular circumstances of the case        The facts as submitted by the parties, and which may be deduced from documents lodged with the application, may be summarised as follows.        On 13 March 1989, at 07.30, W.A., a part-time soldier in the Ulster Defence Regiment (UDR), was injured after being shot four times by two gunmen wearing balaclava helmets over their faces.        At about 10.45 hours on the same day, the police went to the applicant's house and asked him to account for his movements since the previous evening. The applicant stated that he had spent the previous night at a friend's house and that he had returned to his own house at 09.00 hours that day. When questioned about certain items of clothing, in particular a pair of jeans which had mud on them, the applicant explained that he had worn them when out hunting on Saturday 11 March 1989 with his father.        At 11.28 hours, the applicant was arrested under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 in connection with the shooting of W.A..        The applicant was taken to Castlereagh Police Station, where on arrival he requested to see a solicitor. At 13.30 hours, a Detective Superintendent authorised a delay in access to a solicitor for 48 hours, pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987.        The applicant was cautioned, pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988, that a failure to mention any fact that he later relied on in his defence in court might be treated as supporting the case against him. He was also cautioned, pursuant to Article 5 of the Criminal Evidence Order 1988, in respect of adverse inferences which might be drawn from any failure to account for items of clothing in his possession on which were marks or substances attributable to participation in the commission of an offence, and also in respect of fibres found in his hair from a balaclava helmet allegedly used by one of the gunmen. The applicant remained silent.        The applicant saw his solicitor on 15 March 1989 at 11.26 hours. He was advised to remain silent.        On 18 March 1989, the applicant was charged with attempted murder and possession of a firearm with intent to endanger life. He was subsequently charged with the wounding of W.A. and possession of a firearm for no lawful object.        On 23 March 1989, the applicant's application to be released on bail was refused by the judge on the grounds of the serious nature of the charges and the serious risk of the applicant not turning up for trial.        On 28 March 1990, the applicant was committed for trial. The bill of indictment was received at the Crown Court office on 2 May 1990. He was arraigned on 13 June 1990 and because of the serious nature of the charges his case was scheduled for hearing before a High Court judge.        The applicant's case was initially listed for hearing on 20 November 1990 but was postponed twice because the preceding trial overran.        The applicant was tried before a judge sitting without a jury from 26 to 28 November 1990.        At his trial, the applicant, on the advice of his legal advisers, did not give evidence.        The prosecution case was founded on circumstantial evidence of a forensic nature linking the applicant with the Vauxhall car allegedly used by the gunmen. It consisted of the following:   (a)   fresh tyre imprints at the entrance to a field just off      Ballyskeagh Road, towards which the gunmen had run, matching      those of a Vauxhall Cavalier ("the car") belonging to P.L.;   (b)   behind the driver seat of the car, a sleeve of a black woollen      jumper containing two holes that would have made a balaclava type      mask, on which were found particles that were consistent with      having originated from the discharge of a cartridge;   (c)   A thumb print of the applicant on the interior rear view mirror      but no evidence as to when it was made;   (d)   oral evidence from P, a prosecution witness, that the applicant      had flagged the Vauxhall car down at about 1.30 am on      13 March 1989 and had got into the car to talk to B. for about      ten minutes; a written statement by P stating that the applicant      had not got into the car but had talked to E. L., the driver,      outside the car;   (e)   evidence from P that on Saturday 11 March 1989 the applicant had      driven E. L. and himself to and from a dance in Omagh in the      Vauxhall car and had dropped him at home at 3 a.m.;   (f)   evidence from L. L. that he had seen the applicant driving with      his brother E. L. some time at the start of March;   (g)   evidence from P. L., the owner of the car, that he had seen his      son E. L. in the company of the applicant but had never seen him      in the car;   (h)   3 fibres in the applicant's hair that were microscopically      indistinguishable from the fibres of the balaclava.   Two of the      fibres were further analysed and found to have been made from the      same type of acrylic material as the balaclava.   One of these      was further analysed and found to be dyed with the same      combination of dyestuffs as the fibres of the balaclava.      However, these fibres were found to be indistinguishable from the      black fibres in the waistband and cuffs of an anorak or black      cotton coat belonging to the applicant.   This anorak was found      by the police over the back of a chair in the applicant's house      when they visited it on the morning of the crime.   The forensic      expert's conclusion was that "he would not attach particular      weight to that finding";   (i)   muddy jeans;   (j)   the applicant's front door key in the pocket of the muddy jeans;   (k)   evidence from the victim in his statement of evidence and in      cross examination that the gunmen wore matching army type combat      trousers (not jeans);   (l)   fibres on the applicant's jeans and anorak that were      indistinguishable from that of the balaclava but also matched the      black fibres of the waistband and cuffs of the anorak such that      the forensic expert did not consider much weight could be      attached to this finding;   (m)   5 fibres on the back of the anorak and the blue jeans which      matched the majority coloured fibre components in the Vauxhall's      car upholstery.   Two fibres found on each of the front seats of      the car that matched the minority turquoise component of the      waistband of the anorak.   Although neither the particular      Vauxhall car nor the anorak would be a unique source of the these      fibres, the forensic expert considered that these two findings      taken together strongly supported the proposition that the anorak      and jeans had been in contact with the front seats of the car.      Although the presence of the small number of fibres found on the      applicant's clothing would be consistent with "fairly recent      contact", the fibres on the front seats of the car that matched      the minority component of the waistband of the anorak could have      remained for longer than one or two days, depending on the usage      of the car and the number of people getting in and out of it.      If the car had been very little used the fibres could possibly      have been on the seats for weeks.   It was feasible that the jeans      and anorak could have come either from contact with the Vauxhall      "some time ago" or alternatively from contact with other car      seats containing identical fibres.   (n)   The firearms expert found nothing of significance on the firearms      swabs taken from the applicant's anorak, or other clothing taken      from him by the constable.   However, she detected particles      consistent with cartridge discharge residue in the inner surface      of the waistband area of the muddy blue jeans.   The discharge was      consistent with secondary transfer rather than primary discharge      residue.   That meant that the particles found came from being in      contact with a source of cartridge discharge residue rather than      from initial contact with the cartridge discharge residue when      the gun was fired.   She could not say positively that the      particles actually came from cartridge discharge, but only that      it was more than likely that they did.   She accepted that the      particles might have fallen from the shotgun used by the      applicant and his father on Saturday 11 March when they went      shooting, but it was unlikely that the particles would have been      there after 24 hours unless the jeans had been taken off and left      undisturbed.   If that had been the case however, she considered      that she would have been able to conclusively identify the      residue as cartridge discharge, which was not the case here.   (o)   Evidence from the applicant's father that he and his son had been      shooting at rabbits on 11 March, 2 days before the shooting of      the UDR soldier;        On 18 January 1991, the applicant was found guilty of the offences of attempted murder of W.A. and possession of a firearm with intent to endanger life.   He was sentenced to a total of eighteen years' imprisonment.        The judge found the following:   (a)   that the vauxhall car was used by gunmen; (b)   that the applicant was not at home at the time the crime was      committed and there was no evidence to support his assertion that      he was in B's house; (c)   that the applicant had some association with the car at 1.30 am      on 13 March; (d)   that the relationship between the applicant and the owner of the      car was a friendly and easy going one such that the applicant      could have borrowed the car for the purposes of the crime; (e)   that the applicant's left thumb print was found on the interior      rear mirror of the car and it could have been made at the      material time; (f)   that the balaclava found in the back seat of the car was      consistent with the one seen by the victim and it was left by the      gunmen and that some fibres matching it were found in the      applicant's hair and he could therefore have been wearing it; (g)   that there were fibres on the back of the applicant's jeans and      anorak that matched fibres in the car upholstery and that the      applicant had not got into the car at 1.30 am as had been claimed      by P. in his oral testimony, so that the fibres could not have      come from that alleged contact; (h)   that some firearm residue particles characteristic of secondary      transfer were found on the inner waistband of the applicant's      blue jeans and that they could have been deposited there if the      applicant or one of the gunmen had put his pistol in the      waistband of his jeans after the shooting; (i)   that the blue jeans found 3 hours after the crime were damp and      muddy and the mud was visually the same as in the area where the      car was parked; (j)   that the applicant's front door key was found in the pocket in      the jeans; and (k)   that if the victim was mistaken in his statement of evidence to      the police and in cross-examination, but not in evidence in      chief, that both gunmen were wearing combat type trousers, the      dampness and mud could have been caused by the applicant at or      about the car or in the sheugh or in the particular area.        As regards these findings the judge stated:        "Each one of these single matters is not inconsistent with the      guilty participation of the   accused in the crime.   Some are more      consistent with guilt than others.   Not one of them, however, in      itself, proves guilt to the standard of proof required.   For each      of them, as Mr. B. (the applicant's representative) stressed in      his closing speech, there may be a counterbalancing explanation      consistent with innocence.   Although, in turn, some of them are      less consistent with innocence than others."        In convicting the applicant, the trial judge relied upon Article 4 of the Criminal Evidence Order 1988, pursuant to which at the end of the prosecution case he had called upon the applicant to give evidence in his own defence in default of which adverse inferences could be drawn.   He also drew inferences under Article 3 of the Criminal Evidence Order 1988 from the applicant's silence during questioning by the police.   However, he adopted a different approach in respect of inferences that could have been drawn under Article 5, declining to make any adverse inferences on the basis that the applicant had given some explanations to the police prior to arrest.        The trial judge stated in regard to Article 3 of the Criminal Evidence Order 1988 and the applicant's failure to respond to questions by the police:        "By this silence, can it be said that he failed to mention      facts relied upon in his defence at the trial? I do not      forget that before he was cautioned under Article 3 at      Castlereagh he gave a general account of his   movements to      Detective Constable Bell and explained the condition of his      jeans on the ground that he had been out "hunting" two days      before. What he omitted to do in reply to the caution under      Article 3 was to repeat these matters of his defence and to      fail to answer questions relative to their detail. He      omitted to mention at all and this to me is significant      that he had driven the Vauxhall car on the Saturday night      before the crime and that he had met up with <B., P. and      L.> in the early hours of the 13th. I consider that the      <applicant> "could reasonably have been expected" to have      mentioned these matters at Castlereagh. The "hunting" story      could have been investigated by the police. Its forensic      significance would have been considered by the firearms      expert. The potentially damning evidence of the      fingerprint, if left unexplained, found on the car mirror      was brought home to the accused at Castlereagh in clear      language as was the evidence linking the car to the scene      of the crime. The incriminating nature of fingerprint      evidence must be well-known to any member of the public. I      would have expected a suspect when faced with this, if he      had an innocent alternative to give, to have given it.        I do not, however, in all the circumstances draw the      strongest adverse inference that one may be entitled to      draw in other cases under Article 3. My reason is that he      did disclose in general terms some of the facts relied on      in his defence. But I do find that his failure to mention      the particular matters that he did, many of which were of      the greatest importance in his defence, reduces the      credibility of his defence and increases the weight of the      prosecution case..."        In relation to the applicant's silence in court and the application of Article 4 of the Criminal Evidence Order 1988, the trial judge commented:        "In the instant case it seems to me that what the      prosecution has proved in evidence calls for evidence from      the accused in the witness box. No reasons have been      advanced for his refusal to give evidence. Nor are any      reasons apparent to the court for withholding his account      on oath. Indeed it seems to me remarkable he has not given      evidence. It is not the function of the court to conjure up      reasons for his silence. He has been told by the court in      plain language what the consequences of his failure may be      and he has no doubt been advised by his experienced counsel      to the same effect. It is only commonsense, in the      circumstances, to infer as proper inference that he is not      prepared to assert his innocence on oath because that is      not the case. The inference which I draw from his failure      to give evidence under Article 4 is stronger and much more      to his detriment than that drawn by me under Article 3."        The applicant appealed against his conviction, alleging inter alia that the judge had erred in applying Article 4 of the 1988 Criminal Evidence Order in his case. The appeal was dismissed by the Court of Appeal in Northern Ireland on 25 October 1991.   Lord Chief Justice Hutton, giving the judgment of the court, rejected the argument by the applicant's counsel that the approach of the trial judge had the effect of reversing the burden of proof. It found that the trial judge had not acted improperly in drawing an inference from the applicant's failure to give evidence:        "The right of the court under Article 4 to draw such      inferences as appear proper arises once the Crown has      established a prima facie case and does not require that      the Crown case constituted by the evidence should be `on      the brink' of proving guilt or should create a situation      which at common law would be regarded as a `confession and      avoidance' situation. But whether or not the court will      draw inferences will depend upon the circumstances of the      particular case and, if inferences are drawn, the strength      of those inferences will also depend upon the particular      circumstances of the case.        There may be cases where, despite the refusal of the      accused to give evidence when called upon by the court to      do so pursuant to Article 4, the court may think it      inappropriate to draw any inferences against him. Moreover,      before convicting, the court, having regard to the evidence      adduced by the Crown and to the inferences (if any) which      it draws under Article 4, must always be satisfied that the      Crown has discharged the burden of proving that the accused      is guilty beyond a reasonable doubt. Article 4 does not      alter the fundamental principle that the burden rests on      the Crown to prove guilt beyond a reasonable doubt.        The refusal of the accused to give evidence on his own      behalf does not in itself indicate guilt. Under Article 4      it would be improper for the court to draw the bare      inference that because the accused refused to give evidence      in his own defence he was therefore guilty. But where      commonsense permits it, it is proper in an appropriate case      for the court to draw the inference from the refusal of the      accused to give evidence that there is no reasonable      possibility of an innocent explanation to rebut the prima      facie case established by the evidence adduced by the      Crown, and for the drawing of this inference to lead on to      the conclusion, after all the evidence in the case has been      considered, that the accused is guilty...        We consider that in this case the trial judge was entitled      to draw the inference from the refusal of the appellant to      give evidence in his own defence that there was no      reasonable possibility of an innocent explanation which he      could put forward to rebut the inference which could be      drawn from the evidence adduced by the Crown, and that      accordingly the inference which the Crown submitted should      be drawn from that evidence, namely that the appellant was      one of the gunmen who used the Vauxhall car and who shot      and wounded <W.A.>... was correct and that therefore the      appellant was guilty...".        While the Court of Appeal found that the trial judge had erred in drawing an inference under Article 3 of the 1988 Criminal Evidence Order from the failure to offer an explanation for the fingerprint (ie. the fingerprint had not been identified as that of the applicant until after his interviews with the police), it found that this error did not invalidate his general findings in respect of Article 3. It concluded that the convictions were not thereby rendered unsafe or unsatisfactory.        The applicant was granted leave to appeal to the   House of Lords.        In its judgment of 29 October 1992, the House of Lords rejected the applicant's appeal, agreeing with the judgment of the Court of Appeal.        Lord Slynn in the leading judgment stated:        "The accused cannot be compelled to give evidence but he      must risk the consequences if he does not do so. Those      consequences are not simply, as the appellant contends,      that specific inferences may be drawn from specific facts.      They include in a proper case the drawing of an inference      that the accused is guilty of the events with which he is      charged.        This does not mean that the court can conclude simply      because the accused does not give evidence that he is      guilty. In the first place the prosecutor must establish a      prima facie case - a case for him to answer. In the second      place in determining whether the accused is guilty the      judge or jury can draw only `such inferences from the      refusal as appear proper'.   As Lord Diplock said in Haw Tua      Tau v. Public Prosecutor at p. 153B:              `What inferences are proper to be drawn from an            accused's refusal to give evidence depend upon            the circumstances of the particular case, and is            a question to be decided by applying ordinary            commonsense.'        There must thus be some basis derived from the      circumstances which justify the inference.        If there is no prima facie case shown by the prosecution      there is no case to answer. Equally, if parts of the      prosecution had so little evidential value that they called      for no answer, a failure to deal with those specific      matters cannot justify an inference of guilt.        On the other hand if aspects of the evidence taken alone or      in combination with other facts clearly call for an      explanation which the accused ought to be in a position to      give, if an explanation exists, then a failure to give any      explanation may as a matter of commonsense allow the      drawing of an inference that there is no explanation and      that the accused is guilty...        In the present case if the only evidence relied on was that      relating to the fibres in the hair, on the clothing and in      the car, it might well not be enough to justify an      inference that the accused was guilty beyond a reasonable      doubt. The cartridge residue on the jeans, the thumb print      on the mirror and the mud on the trousers, the evidence      that he was not at home during the night clearly taken in      combination call for an explanation if there was one. The      judge was moreover entitled to have regard to the      cumulative effect of all the circumstantial evidence in      deciding whether a failure to give evidence justified an      inference of guilt.        In my opinion the evidence adduced by the prosecution      established a clear prima facie case and the trial judge      was entitled in all the circumstances of the case, and as      a matter of commonsense, to infer that there was no      innocent explanation   to the prima facie case and that the      accused was guilty... Contrary to the <applicant's>      contention, he quite plainly did not proceed on the basis      that simply because the accused did not give evidence he      was therefore guilty...".     b.    Relevant domestic law and practice        Provisions governing inferences which may be drawn from an      accused's silence        Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (hereafter referred to as the Criminal Evidence Order 1988) provides as relevant:        "Circumstances in which inferences may be drawn from accused's      failure to mention particular facts when questioned, charged,      etc.        3.     (1) Where, in any proceedings against a person for an      offence, evidence is given that the accused        (a)    at any time before he was charged with the            offence, on being questioned by a constable            trying to discover whether or by whom the            offence has been committed, failed to mention            any fact relied on in his defence in those            proceedings; or        (b)    on being charged with the offence or officially            informed that he might be prosecuted for it,            failed to mention any such fact,        being a fact which in the circumstances existing at the      time the accused could reasonably have been expected to      mention when so questioned, charged or informed, as the      case may be, paragraph (2) applies.        (2) Where this paragraph applies:              (a) the court, in determining whether to commit            the accused for trial or whether there is a case            to answer,              (b) a judge, in deciding whether to grant an            application made by the accused under Article 5            of the Criminal Justice (Serious Fraud)            (Northern Ireland) Order 1988 (application for            dismissal of charge where a case of fraud has            been transferred from a magistrates' court to            the Crown Court under Article 3 of that Order),            and              (c) the court or jury, in determining whether            the accused is guilty of the offence charged,              may                    (i) draw such inferences from the failure as                  appear proper;                    (ii) on the basis of such inferences treat the                  failure as, or as capable of amounting to,                  corroboration of any evidence given against the                  accused in relation to which the failure is                  material.        (3) Subject to any directions by the court, evidence tending to      establish the failure may be given before or after evidence      tending to establish the fact which the accused is alleged to      have failed to mention."          Article 4 of the Criminal Evidence Order 1988 provides as relevant:        "Accused to be called upon to give evidence at trial        4.     (1) At the trial of any person (other than a child) for an            offence paragraphs (2) to (7) apply unless              (a) the accused's guilt is not in issue, or              (b) it appears to the court that the physical or            mental condition of the accused makes it undesirable            for him to be called upon to give evidence;        but paragraph (2) does not apply if, before any evidence is      called for the defence, the accused or counsel or a solicitor      representing him informs the court that the accused will give      evidence.        (2) Before any evidence is called for the defence, the court              (a) shall tell the accused that he will be called upon by            the court to give evidence in his own defence, and              (b) shall tell him in ordinary language what the effect of            this Article will be if                    (i) when so called upon, he refuses to be sworn;                    (ii) having been sworn, without good cause he refuses                  to answer any question;        and thereupon the court shall call upon the accused to give      evidence.        (3) If the accused              (a) after being called upon by the court to give evidence            in pursuance of this Article, or after he or counsel or a            solicitor representing him has informed the court that he            will give evidence, refuses to be sworn, or              (b) having been sworn, without good cause refuses to answer            any question, paragraph (4) applies.        (4) The court or jury, in determining whether the accused is      guilty of the offence charged, may              (a) draw such inferences from the refusal as            appear proper;              (b) on the basis of such inferences, treat the            refusal as, or as capable of amounting to,            corroboration of any evidence given against the            accused in relation to which the refusal is            material."          Provisions governing access to a solicitor        Section 15 of the Northern Ireland (Emergency Provisions) Act 1987 provides as relevant:        "15. Right of access to legal advice        (1) A person who is detained under the terrorism provisions and      is being held in police custody shall be entitled, if he so      requests, to consult a solicitor privately...        (4) If a person makes such a request, he must be permitted to      consult a solicitor as soon as is practicable except to the      extent that any delay is permitted by this section...        (8) An officer may only authorise a delay in complying with a      request under subsection (1) where he has reasonable grounds for      believing that the exercise of the right conferred by that      subsection at the time when the detained person desires to      exercise it -              ...              (d) will lead to interference with the gathering of            information about the commission, preparation or            instigation of acts of terrorism; or              (e) by alerting any person, will make it more difficult -                    i. to prevent an act of terrorism, or                    ii. to secure the apprehension, prosecution or                  conviction of any person in connection with the                  commission, preparation or instigation of an act of                  terrorism."        The delay must be authorised by a police officer of at least the rank of superintendent (sub-section (5)(a)), and the detained person must be told the reason for the delay (subsection (7)). The maximum delay is 48 hours.   COMPLAINTS        The applicant complains that adverse inferences drawn from his refusal to give evidence in his defence under Article 4 of the 1988 Criminal Evidence Order violated his right to a fair trial, as guaranteed by Article 6 para. 1 of the Convention, and deprived him of his right to be presumed innocent, contrary to Article 6 para. 2 of the Convention.        The applicant further complains that the application of Article 3 of the 1988 Criminal Evidence Order also abrogated his right to remain silent and violated Article 6 para. 3(b) of the Convention.        Further, the applicant contends that the refusal to allow him access to a solicitor was in breach of Article 5 para. 3 of the Convention.        Finally, he invokes Articles 13 and 14 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 April 1993 and registered on 15 July 1993.        On 11 October 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the case.        The Government's observations were submitted on 2 March 1994, after two extensions in the time-limit fixed for this purpose. The applicant was invited to submit written observations in reply by 28 April 1994. None were produced.        On 10 October 1994 the Commission decided to declare part the application inadmissible and to adjourn further consideration of the application pending the outcome of the case of John Murray v. the United Kingdom (No. 18731/91) before the European Court of Human Rights.        On 2 March 1996, following the judgment of the European Court of Human Rights of 8 February 1996 in the case of John Murray v. United Kingdom (to be published in 1996 Reports), the Commission decided to invite the parties to submit any additional observations which they might consider appropriate as to the relevance of that Court judgment to the facts of the application.        By letter of 10 April 1996, the applicant's representative stated that no further observations were to be submitted.   On 10 May 1996, the respondent Government submitted their supplementary observations.   THE LAW   1.    The applicant complains that he was deprived of the right to silence and the presumption of innocence in the criminal proceedings brought against him as a result of the operation of the provisions of the 1988 Criminal Evidence Order, which permitted a judge, sitting without a jury, to draw inferences from his failure to answer police questions and from his failure to give evidence in his own defence during the trial. He further complains that he was deprived of access to his solicitor in the first 48 hours of his detention which the Commission will consider under Article 6 para. 3(c) (Art. 6-3-c) tion. The applicant invokes Article 6 paras. 1, 2 and 3 (b) (Art. 6-1, 6-2, 6-3-b) of the Convention.   These provisions provide so far as relevant:        Article 6 para. 1 (Art. 6-1) of the Convention:        "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. 2 (Art. 6-2) of the Convention:   &#x