CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1997

.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. 32821/96                       by Scott ENION                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION              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 7 August 1996 by Scott ENION against the United Kingdom and registered on 29 August 1996 under file No. 32821/96;        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 is a British citizen, born in 1971 and resident in Manchester. He is represented before the Commission by John MacKenzie, a solicitor practising in London.   A.    Particular circumstances of the case.        The facts of the case as submitted by the applicant may be summarised as follows. On 5 October 1995 the applicant, then a Lance Corporal in the British army, was tried by district court-martial on alternative charges of absence without leave and desertion in relation to a period from early 1992 to June 1995. The applicant was convicted of desertion and sentenced to dismissal from the army. The applicant was legally represented prior to and during the court-martial.        On 20 October 1995 the applicant's representative presented a petition to the applicant's Commanding Officer requesting that the petition be treated as a petition to the Confirming Officer and, if it was not successful, that it be passed on as a petition to the Defence Council. The grounds upon which the petition was based were that the Judge Advocate had misdirected himself in ruling that the prosecution case did not constitute an abuse of the process and that that Judge Advocate was wrong in law in ruling that the defence of duress by necessity was only available to the applicant if he acted in fear of death or serious injury to himself or to another. The petition was considered as a petition to the Confirming Officer only and the latter, having confirmed the conviction and sentence, promulgated the conviction and sentence on 3 November 1995.        On 22 December 1995 the applicant's representative, having had no response by then from any party to the petition, applied for leave to appeal to the Courts-Martial Appeal court. The grounds in that application were the same as those contained in the petition considered by the Confirming Officer. By letter dated 11 January 1996 the Courts- Martial Appeal Court returned the application for leave to appeal to the applicant because the applicant had not yet petitioned the Defence Council. That letter also pointed out that once a petition had been presented to and dealt with by the Defence Council an application to the Courts-Martial Appeal Court could be submitted. Accordingly, on 12 January 1996 the applicant's representative presented a petition to the Defence Council. The grounds in that petition were the same as those contained in the petition considered by the Confirming Officer and in the application for leave to appeal to the Courts-Martial Appeal Court. On 22 February 1996 the applicant's representative was informed of the decision, taken by the Army Board, to reject the applicant's petition to the Defence Council. The applicant did not subsequently re- submit an application for leave to appeal to the Courts-Martial Appeal Court.   B.    Relevant domestic law and practice.        The Courts-martial Appeal Court ("CMAC") has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division. The judges of this court include ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as are nominated by the Lord Chief Justice. If an appeal petition is rejected by the Army Board an appellant may apply to a single judge of the CMAC (and, if necessary, also to the full court) for leave to appeal against conviction to that court. The CMAC must allow the appeal against conviction if it considers that the finding of the court-martial is, under all the circumstances of the case, unsafe or unsatisfactory or involves a wrong decision on a question of law. The appeal must also be allowed if there was a material irregularity in the course of the trial. In any other case the CMAC must dismiss the appeal. If the CMAC allows an appeal against conviction it must quash the conviction, although, on the quashing of a conviction, the CMAC's power to authorise a new trial may come into operation.   COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention that he was denied a fair and public hearing by an independent and impartial tribunal established by law. He also complains under Article 6 para. 3 (c) of the Convention that he was not given the opportunity to have legal representation at the stages of service of the abstract of evidence and remand for trial.   THE LAW        The applicant complains under Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) about the court-martial proceedings. He submits that the proceedings were unfair and that court-martial itself was neither independent, impartial nor established by law. He further submits that he was not given the opportunity to have legal representation at certain important stages of the proceedings.        The Commission recalls that, pursuant to Article 26 (Art. 26) of the Convention, it is only competent to consider complaints after all domestic remedies have been exhausted according to the generally recognised rules of international law.        In this respect the Commission notes that, although the applicant presented a petition to the Defence Council on 12 January 1996 pursuant to the CMAC's letter dated 11 January 1996, he did not then proceed to re-apply for leave to appeal to the CMAC once that petition had been rejected. In this respect, the Commission considers that the grounds, upon which the applicant's petitions and his leave application to the CMAC were based, constituted grounds of appeal which the CMAC is competent to consider. It further notes that the CMAC can, if it finds in the appellant's favour on such grounds, quash the conviction. In such circumstances, the Commission considers that, by failing to re- apply to the CMAC, the applicant failed to exhaust domestic remedies within the meaning of Article 26 (Art. 26) of the Convention and the Commission must therefore declare the application inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber