CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 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. 27267/95                       by David Robert HOOD                       against the United Kingdom          The European Commission of Human Rights sitting in private on 1 December 1997, 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                  C.L. ROZAKIS                  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            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 18 April 1995 by David Robert HOOD against the United Kingdom and registered on 5 May 1995 under file No. 27267/95;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations of the respondent Government received on      14 April 1997 and the observations in reply of the applicant      received on 10 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1970 and resident in Windsor. He is represented before the Commission by Mr. John Mackenzie, a solicitor practising in London.   A.    Particular circumstances of the case        The facts as presented by the parties may be summarised as follows.        The applicant joined the British Army in 1986 and after training was posted to Germany. On 1 April 1990 the applicant went missing from his unit, he returned on 16 May 1990, he went absent again on 17 May 1990 and he gave himself up to the police in the United Kingdom on 6 August 1990. He was initially held in the United Kingdom for two weeks after which he was held in close arrest in Germany until October 1990 when he was released to go home on compassionate leave. He returned to his unit in Germany and was returned to close arrest. On 12 November 1990 the applicant was informed that he was to be released for deployment to the Persian Gulf and that he would be charged on his return. On 17 January 1991 he was so deployed. On 21 March 1991 he was returned to Germany and was sent again on compassionate leave (his father's illness) and on 9 May 1991 he returned to his unit in Germany.        The applicant went missing again from his unit on 16 June 1991. He claims that it was following a nervous breakdown, whereas the Government submit that the applicant had been remanded for trial by general court-martial on 27 May 1991 on a charge of wounding with intent (a charge which was subsequently abandoned) and on two charges of being absent without leave. The applicant remained absent until 9 December 1993 when he gave himself up to the police who allowed him to return to his unit. He was accommodated in "a barrack block" awaiting his court-martial on charges of going absent without leave. On 11 May 1994 the applicant went on two weeks leave but he did not return at the end of his leave.        At 23.15 on 27 November 1994 the applicant was arrested from his home by the civilian police and taken to the police station from where, on 28 November 1994, he was taken by army escort to an army barracks. The Government submit that on 29 November 1994 the applicant was brought before his Commanding Officer (Lieutenant Colonel Dawson) pursuant to Rule 4 of the Rules of Procedure (Army) 1972 and given an opportunity to make submissions on his detention and on the nature of his detention, that his Commanding Officer decided that the applicant should be retained in close arrest because of his previous record of absence without leave and that the officer explained this to the applicant. The applicant disputes that he was told why he had been arrested or by whom and why his close arrest had been ordered. He denies that he was given the opportunity to be heard, pointing out that there is no written record of those proceedings before his Commanding Officer. He submits that on or around 3 December 1994 he was seen informally by the Unit Adjutant and that it was on 16 December 1994 that he was informed by that Adjutant of the charges against him.        The applicant remained in close arrest until his court-martial which finished on 4 April 1995 (after which he served his sentence). He was detained during this period of time in a guard block which contained 4 small cells. During his detention he was taken to hospital on a number of occasions for psychiatric care. In or about December 1994 an officer of the applicant's regiment, who was not legally qualified, was appointed to defend the applicant. A court-martial was initially convened for 16 January 1995.        On 4 January 1995 the applicant appeared, without prior notice and without his defending officer being present, before the Unit Adjutant when he was served with the abstract of evidence for the court-martial and the applicant claims that the Unit Adjutant asked him if he wished to make a statement. The applicant claims that, subsequently, he asked his defending officer to help him to prepare the statement and that the officer declined, stating that he was too busy. The applicant had already instructed a civilian solicitor by 11 January 1995, which solicitor, on that day, requested the preparation of a psychiatric report on the applicant. Since this report would not be completed by the date fixed for the court-martial, that date was vacated. The applicant then instructed his present representative who felt constrained to await a grant of legal aid before commencing substantive work for the applicant, including the preparation of the psychiatric report. Accordingly, the applicant prepared the necessary statement himself and submitted it (together with one from his girlfriend) at a hearing before the Unit Adjutant on 20 January 1995, when the applicant was also remanded for trial by court-martial by the Commanding Officer. Once so remanded, the applicant applied for legal aid. The charge sheet, dated 25 January 1995 and signed by the applicant's Commanding Officer and by the Convening Officer's staff officer (Major Dalrymple), records two charges of absence without leave and two of desertion contrary to the Army Act 1955.        The 72nd day of detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972, a direction was issued on 3 February 1995, which was signed on behalf of the Convening Officer (by Major Dalrymple) and which attached an authorisation from the Commander in Chief directing the applicant's continued detention. However, the Commander in Chief was to be informed if the court-martial did not take place by 7 March 1995 (the applicant's 100th day of detention). The applicant submits that on or around 13 February 1995 he asked a regimental sergeant who had been visiting someone else in the guard room why he had not been released and that he was informed of the decision of the Convening Officer and the Commander in Chief to extend his detention.        On 8 February 1995 legal aid was refused since it was considered that the case was not one in which the interests of justice required that the accused should be professionally represented. However, by letter dated 14 February 1995 the Ministry of Defence confirmed the grant of legal aid. Once legal aid was granted, the applicant's solicitor on the same date requested the preparation of a psychiatric report.        On 17 February 1995 the applicant commenced habeas corpus proceedings, submitting that his detention was unlawful. The affidavits filed on behalf of the applicant by his legal representatives took issue with the regularity of the 72 day delay report. The applicant's own affidavit was annexed to the affidavit of one of his representatives. In his affidavit, the applicant submitted that he had been given no opportunity to present his case against his on-going detention in close arrest; that he suffered from a psychiatric condition making close arrest difficult to cope with; that he did not know, and had received no formal notification as to, who had authorised the extension of his detention after the 72nd day or when this had been done; and that he did not consider that there was any good reason why his court-martial had been further delayed. He requested that his position be "regularised" and that he be released and stated that he had no intention of absconding again. On 20 February 1995 the applicant was taken before the regimental headquarters discipline clerk without notice and required to sign a form outlining what his pleas at the court-martial would be. The form noted that the applicant would plead not guilty.        On 21 February 1995 the High Court rejected the applicant's habeas corpus application on the grounds that his detention was in accordance with domestic law. It noted that a court-martial had been initially fixed for 16 January 1995 and that the reason for the delay in holding the court-martial was the defence's need to obtain a psychiatric report. As to the completion of the 72 day delay report, the court found that the report had been properly completed, recording that the reason for his continued detention was to prevent the applicant from absenting himself again. The court described the reason given for the applicant's continuing detention as "a perfectly understandable reason" having regard to the charges against the applicant.        By letter dated 22 February 1995 the applicant's solicitor notified the Convening Officer that the time required for the preparation of the psychiatric report (bearing in mind the recent grant of legal aid) meant that the defence would not be ready for 1 March 1995 (this being the further date under consideration for the court-martial). At the end of 100 days detention the applicant was informed that his detention had been extended once again. By notice dated 17 March 1995 a district court-martial was convened to take place in early April. A further convening order dated 1 April 1995 was circulated to the parties, which order changed the location but not the date of the court-martial.        The court-martial took place on 3 and 4 April 1995. The applicant claims that each person who attended the court-martial was required to give his or her name and address to an army official. The applicant pleaded not guilty. He claims that the prosecution relied heavily on his statement on the abstract of evidence. He was convicted on the two charges of absence without leave and on one of the charges of desertion, the remaining charge of desertion being reduced to one of absence without leave. He was ordered to undergo detention for eight months and to be dismissed from the service. The sentence was expressed as taking into account the applicant's period of close detention immediately prior to the court-martial (125 days) but not the earlier period of detention in 1990.        On 10 April 1995 the applicant submitted a petition to the Confirming Officer, requesting that, in the event that the conviction and sentence were confirmed, the petition be passed on to the Army Board. By letter dated 4 May 1995 the Confirming Authority informed the applicant's representatives that the conviction had been confirmed and, accordingly, the conviction and sentence were promulgated on 10 May 1995. Since no reply had been received to the applicant's representatives' letters enquiring, inter alia, whether the petition had been passed on to the Army Board, the applicant's representatives submitted the petition to the Army Board on 1 June 1995 and also filed an appeal to the Courts-Martial Appeal Court ("CMAC") on 15 June 1995 in view of the time-limits before that Court.        By letter dated 13 July 1995 it was confirmed that the applicant's petition to the Army Board had been denied. Since the Registrar of the CMAC considered the earlier application for leave to appeal to have been premature, the applicant re-submitted the application to the single judge of the CMAC for leave to appeal to that court by letter dated 2 August 1995. On 13 September 1995 the single judge rejected the application for leave to appeal. The appeal to the full Courts-Martial Appeal Court was rejected on 18 March 1996.   B.    Relevant domestic law and practice        The main provisions governing the arrest and detention of persons subject to military law are contained in sections 74-75 and 186-190 of the Army Act 1955 ("the 1955 Act"), in Rules 5, 6 and Schedule 1 of the Rules of Procedure (Army) 1972 ("the 1972 Rules") and in paragraphs 6.004-6.008 and 6.047 of the Queen's Regulations for the Army 1975.        Desertion and absence without leave constitute offences under the 1955 Act. The punishment for the offence of desertion is imprisonment for an unlimited term (subject to the sentencing powers of the court- martial in question) and that for absence without leave is imprisonment for a maximum of 2 years.   1.    Arrest        In general, once there is reasonable cause to suspect that a person subject to military law has deserted or gone absent without leave, the civilian police, an officer, warrant officer, non- commissioned officer or soldier of the regular forces may arrest that person. A person so arrested must, as soon as is practicable, be brought before a civilian court of summary jurisdiction (section 186 of the 1955 Act). In addition, a warrant for the arrest of a person subject to military law and considered to have deserted or be absent without leave may be issued by his/her Commanding Officer and any such warrant must be addressed to the civilian police. A person arrested in pursuance of such a warrant must be handed over as soon as is practicable to the military authorities together with a certificate which records the fact, date and time of the arrest (section 190A of the 1955 Act).   2.    Detention        The relevant rules governing the detention of the accused use the word "arrest" when referring to detention. The accused's detention can be in the form of "open arrest" or "close arrest" and the type of "arrest" must be specified in the order for arrest. Open arrest confines the accused to barracks but otherwise allows him freedom of movement. Close arrest means that the accused is confined to a cell in the unit guardroom under constant supervision of the guard.        Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and as soon as may be either proceedings shall be taken for punishing his offence or he shall be released from arrest. In addition, should that detention last longer than 8 days without a court-martial being convened, a report (a "delay report") on the necessity for further delay shall be made by the person's Commanding Officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court-martial is assembled or the offence is dealt with summarily or the accused is released from detention.        Section 76 of the 1955 Act provides that any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person's Commanding Officer and before any action is taken the Commanding Officer must investigate the charge. According to section 77, where in the course of his investigations it appears to the Commanding Officer that proceedings in respect of the charges could, in the interests of the best administration of justice, be dealt with other than under the relevant Act under which they were preferred, the Commanding Officer may stay the charges. (This allows the charges to be dealt with under the other service Acts or by the civilian authorities.) This section also allows the Commanding Officer to dismiss the charge if he is of the opinion that it ought not to be proceeded with.        If the Commanding Officer has not stayed or dismissed the charge, and the charge is one that can be dealt with summarily by him and he considers that it is one to be so dealt with, he must deal summarily with the charge, taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78 of the 1955 Act). Otherwise the Commanding Officer must take the prescribed steps to have the case tried by court-martial.        Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his Commanding Officer shall, unless it is impracticable, within 48 hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it.        Rule 5 of the 1972 Rules provides that the report to which Article 75 of the 1955 Act refers shall be in the form set out in Schedule 1 to the 1972 Rules, shall be signed by the Commanding Officer of the person detained and shall be sent to the person who would be responsible for convening the court-martial. According to Schedule 1 of the 1972 Rules the report must, inter alia, specify whether the accused is in close or open arrest; the reasons for his detention; whether an abstract of evidence was taken and when; whether an application for trial has been made and, if not, why not; whether Army Legal Services' advice has been sought, received and followed; whether a date for trial has been fixed; and the reasons for the delay since the last report. Rule 6 of the 1972 Rules provides that the accused shall not be held in arrest for more than 72 consecutive days without a court-martial having been convened unless the Convening Officer directs in writing, citing reasons, that the accused shall not be released from detention.        Paragraph 6.005 of the Queen's Regulations states that the mere allegation that a person subject to military law has committed an offence does not of itself necessarily call for or warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline.        The circumstances which would warrant placing an "offender" under "close" arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself; and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades.        Paragraph 6.007 of the Queen's Regulations provides that (subject to, inter alia, the general principle that the accused is not to be unnecessarily held under arrest) Commanding Officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released.        Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia, that on the receipt of every delay report the Convening Officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (sub-section (a) and (b)). On receipt of the fourth delay report, or, in any event, after 40 days detention, the Convening Officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (sub-section (c)). If an accused is not brought to trial by the 72nd day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (sub-section (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)).        Where an accused has been in detention for 72 consecutive days without a court-martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief, who is required to make a special report to the Ministry of Defence for the information of the Defence Council. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (sub-section (f)).   3.    Legal Aid        The provision of legal aid is regulated by paragraphs 6.094-6.095 of the Queen's Regulations together with Chapter 6, Annex D to those Regulations. Annex D provides, inter alia, that legal aid is available to those who "are to be tried by court-martial". The information booklet issued by the army and entitled "The rights of a soldier charged with an offence under the Army Act 1955" provides that a soldier can apply for legal aid with a view to being defended by a civilian lawyer once his Commanding Officer has remanded him for trial by court-martial.   4.    Habeas Corpus        The Commission refers to the outline of the habeas corpus proceedings in the judgment of the Court in the X v. the United Kingdom case (Eur. Court HR, X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 9-11, paras. 17-19). Habeas corpus is available to persons in military custody (R v Royal Army Service Corp. Colchester ex p Elliott (1949) 1 All E 373). In that context, the court will enquire into the period of time which has elapsed before the court-martial and will, if necessary, order release (Re Mackle, reported in The Independent of 26.2.1993).   5.    District army courts-martial        The relevant domestic law and practice are outlined in the Findlay and Coyne judgments (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997 and Coyne v. the United Kingdom judgment of 24 September 1977, both to be published in the Reports of Judgments and Decisions for 1997). On 1 April 1997 the Armed Services Act 1996 came into force. This Act substantially amends, in particular, the role of the Convening Officer in court-martial proceedings.        Section 94 of the 1955 Act provides that a court-martial will be an open trial. Paragraph 6.101 of the Queen's Regulations provides that members of the press and public are to be permitted to attend a court- martial and trial listings are to be posted beforehand in a place accessible to the public.     COMPLAINTS        The applicant complains under Article 5 para. 3 of the Convention that he was not brought promptly before a judge or any officer authorised by law to exercise judicial power. He also complains about the lack of a procedure, complying with Article 5 para. 4 of the Convention, to challenge his continued detention. He also invokes Article 5 para. 5 and Article 13 in relation to those alleged violations of Article 5 paras. 3 and 4 of the Convention.        The applicant also complains under Article 6 para. 1 of the Convention that he did not have a fair and public hearing by an independent and impartial tribunal established by law.        He further complains, under Article 6 para. 3 of the Convention, about the lack of legal representation when he was served with the abstract of evidence, about his defending officer's alleged conflict of interest and about the decision of the court-martial to accept a written statement of one of the witnesses and not to call another witness requested by the defence.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 April 1995 and was registered on 5 May 1995.        On 26 November 1996 the Commission decided to communicate the application under Article 6 para. 1 and Article 5 paras. 3, 4 and 5 of the Convention.        The Government's observations were received on 14 April 1997 after one extension of the time-limit fixed for that purpose and those of the applicant were received on 10 June 1997.     THE LAW   1.    Article 26 (Art. 26) of the Convention        The Commission notes that the applicant claims that he was detained from 6 August 1990 until October 1990, for a subsequent short period until 12 November 1990 and from 9 December 1993 until 11 May 1994. The final period of pre-trial detention was from 27 November 1994 to 4 April 1995. However, it is noted, and it is argued by the Government, that the present application was not introduced until 18 April 1995 which is more than six months after the end of all except that final period of pre-trial detention.        Accordingly, the Commission considers that, insofar as the applicant's complaints under Article 5 (Art. 5) of the Convention relate to the periods of detention prior to 27 November 1994, any such complaints have been introduced outside the six month time-limit set down in Article 26 (Art. 26) of the Convention (No. 24519/94, Dec. 17.1.97, unpublished). Any such complaints are, accordingly, inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The substantive complaints   (a) Article 5 para. 3 (Art. 5-3) of the Convention        The applicant complains that after his arrest he was not brought promptly before a judge or any officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. He refers, inter alia, to the lack of procedures by which he could be informed about and/or challenge his detention. He maintains that he was not told the reasons for his arrest, who had made the decision to detain him under close arrest, why he had been so detained or whether, and why, his detention had been prolonged. He also submits that the officers deciding on his detention were all connected to the prosecution of the case.        Article 5 para. 3 (Art. 5-3) reads as follows:        " Everyone arrested or detained in accordance with the provisions      of paragraph 1.c. of this Article shall be brought promptly      before a judge or other officer authorised by law to exercise      judicial power and shall be entitled to trial within a reasonable      time or to release pending trial.   Release may be conditioned by      guarantees to appear for trial."      The Government submit that, pursuant to Rule 4 of the 1972 Rules, the applicant was brought promptly before his Commanding Officer on 29 November 1994, who gave the applicant the opportunity to be heard as to his detention and that that officer decided that the applicant should be held in close arrest because, as was explained to the applicant, of his previous record of absence without leave. The Government further argue that the Commanding Officer was an officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. In the first place, regard must be had to the special circumstances which apply in the armed forces and the special position of those who serve in them. Secondly, in view of the provisions of Rule 4 of the 1972 Rules and paragraphs 6.005-6.006 of the Queen's Regulations, the Commanding Officer was required to decide promptly whether the applicant should be detained (reviewing all circumstances relevant to the detention and deciding whether there were circumstances justifying such detention) and as to the nature of any such detention. Thirdly, the matters which he must consider are, with certain adaptation to the military context, the same as would be considered by a Magistrate.        The Government also submit that the Commanding Officer is independent of the executive and of the parties to the extent that this is a realistic requirement in the necessarily self-contained military system. The Government submit that the Commanding Officer was not immediately concerned, as the applicant alleges, with the prosecution of the case, since that officer's other roles (following the making of an allegation against a soldier and any subsequent remand for trial by court-martial) are either investigative or quasi-judicial. As regards the special military context referred to above, the Government add that the "executive" is the Ministry of Defence but that in such a military procedure there is only one true party - namely the accused, from whom the accused's Commanding Officer is independent. Insofar as the Commanding Officer is in command of the accused, the Government argue that the rules contained in the 1955 Act, the 1972 Rules and in the Queen's Regulations guarantee the Commanding Officer's independence from the accused.        The applicant does not contest that he was brought before his Commanding Officer on 29 November 1994 but maintains his position that he was not told the reasons for his arrest and that there exists no provision to inform him of the reasons. Further, he was not told who had made the decision to detain him under close arrest and why he had been so detained. He points out that there exists no written record of those proceedings before his Commanding Officer. His Commanding Officer, and all others making decisions as to his detention, were all immediately concerned with the prosecution of the case against him and were not, as such, independent of the prosecution.   (b)   Article 5 para. 4 (Art. 5-4) of the Convention        The applicant further complains under Article 5 para. 4 (Art. 5-4) of the Convention about the lack of a procedure to challenge the decision to keep him in close arrest. He submits that the habeas corpus proceedings   concerned solely the domestic lawfulness of his continued detention and provided no opportunity to have the merits of his case for release considered. He also submits that the High Court refused to consider certain grounds of his application including his argument that close arrest was not appropriate for a person with psychiatric problems. He also argues that, apart from the habeas corpus procedure, there is no other procedure whereby he could challenge his continued detention and that, in any event, he was given no information during his detention which would have allowed him to contest his detention.        Article 5 para. 4 (Art. 5-4) reads as follows:        " Everyone who is deprived of his liberty by arrest or detention      shall be entitled to take proceedings by which the lawfulness of      his detention shall be decided speedily by a court and his      release ordered if the detention is not lawful."        The Government submit that the habeas corpus procedure, which is available to persons held in military custody, includes an examination of the domestic legality of an accused's detention, of whether there is sufficient evidence to justify the decision to detain the accused and of certain facts where such facts are a necessary pre-condition of the power to detain. The court may also enquire into the period of time which has elapsed or is likely to elapse before trial and will, if necessary, order release. Accordingly, and while it is true that the habeas corpus proceedings are concerned with the lawfulness of detention in domestic law, in view of the breadth of the investigation there is no relevant difference for present purposes between a review of lawfulness in domestic law and under the Convention.        In addition, the Government dispute, inter alia, that the applicant made the submissions to the High Court which he above claims to have made. Moreover, and independently of the habeas corpus proceedings, the Government submit that the Commanding Officer was, pursuant to paragraph 6.007 of the Queen's Regulations, under a duty to keep under constant review the need to continue to detain the applicant together with the nature of that detention. In this respect, the Government submit that the applicant's Commanding Officer continued to fear that the applicant could abscond if released, given his history of doing so and that regular delay reports were completed as regards the applicant's continued detention. Finally, the Government note that one of the reasons for the delay in the court-martial and the consequent prolongation of the applicant's detention was the request by the applicant's solicitor for a psychiatric report.        The applicant maintains in his observations his submissions about the High Court refusing to deal with certain grounds of his habeas corpus application. He also points out that his solicitor had no option but to wait until the grant of legal aid before undertaking the costs involved in obtaining a psychiatric report. The applicant could not apply for legal aid until he had been remanded for trial (20 January 1995) and, having been initially refused, legal aid was not granted until 14 February 1995. He also observes that a habeas corpus application was only available once he had been detained for an excessive period of time.   (c)   Article 5 para. 5 and Article 13 (Art. 5-5, 13) of the Convention        The applicant also invokes Article 13 and Article 5 para. 5 (Art. 13, 5-5) of the Convention as regards the matters of which he complains under Article 5 paras. 3 and 4 (Art. 5-3, 5-4) of the Convention claiming that he did not have an effective domestic remedy for those alleged violations of the Convention.        Article 5 para. 5 (Art. 5-5) reads as follows:        " Everyone who has been the victim of arrest or detention in      contravention of the provisions of this Article shall have an      enforceable right to compensation."        Article 13 (Art. 13) reads as follows:        " Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Government accept that any breach of Article 5 para. 3 (Art. 5-3) of the Convention would not give rise to a domestic remedy. However, they   consider that the civil action of false imprisonment suffices for the purposes of Article 5 para. 5 (Art. 5-5) for any breach established of Article 5 para. 4 (Art. 5-4) of the Convention. The applicant, in his observations, argues that there is no right to claim damages for false imprisonment in the domestic courts on the grounds that detention was in breach of the Convention.   (d)   Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention        Finally, the applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not receive a fair and public hearing by an independent tribunal established by law.        The main focus of the applicant's complaint is an alleged lack of independence and impartiality on the part of the court-martial. He also complains that he did not have a fair hearing and in this respect he complains, specifically invoking Article 6 para. 3 (Art. 6-3), about the lack of legal representation when he was served with the abstract of evidence, about his defending officer's alleged conflict of interest in light of that officer's position in the army and about the decisions of the court-martial to accept a written statement of one of the witnesses and not to call another witness requested by the defence.        He also submits that the hearing was not public within the meaning of Article 6 para. 1 (Art. 6-1) alleging that those who attended the court-martial had to record their names and addresses in a book. He further complains that the court-martial was not "established by law" because of the convening of the court martial in an ad hoc manner, the way in which the Convening Officer and Reviewing Authorities are appointed and the "insubstantial" nature of the court- martial system which could not, for example, produce a record of the applicant's detention. The Government have no observations on the admissibility of the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 paras. 1 and 3 (Art. 6-1, 6-3) read 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. ..."        "3.    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 Commission considers that this part of the application raises serious issues under Article 5 paras. 3, 4 and 5 (Art. 5-3, 5-4, 5-5), under Article 6 (Art. 6) and under Article 13 (Art. 13) of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE, the applicant's complaints relating to the      periods of detention prior to 27 November 1994; and        DECLARES ADMISSIBLE the remainder of the application.          M. de SALVIA                                  S. TRECHSEL        Secretary                                   President    to the Commission                            of the Commission