CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mars 1998

.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. 36356/97                       by James SNOWDON                       against the United Kingdom          The European Commission of Human Rights sitting in private on 12 March 1998, the following members being present:                MM     S. TRECHSEL, President                  J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  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 11 March 1997 by James SNOWDON against the United Kingdom and registered on 6 June 1997 under file No. 36356/97;        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 49 year old British farmer. He lives on Alderney, in the Channel Islands.   The facts of the case, as submitted by the applicant, may be summarised as follows.        On the night of 12 to 13 February 1995 the applicant had a quarrel with his tenants. He had been drinking and was apparently given LSD by the tenants. The police were called. When the police officer arrived there was an altercation and the applicant kicked him.   The police officer suffered no injuries. The applicant was arrested and brought before the judge the next morning. The applicant pleaded not guilty and stated that he had no recollection of the event as he was heavily drunk and hallucinating. He was released and the trial was set for 17 February 1995.        On 17 February 1995 the applicant was convicted in the Alderney Magistrates' Court of assault of a police officer in the execution of his duty, contrary to Section 1 of the Offence against Police Officers (Bailiwick of Guernsey) Law 1963. The applicant was sentenced to a fine of £250.00 and 14 days imprisonment, suspended for 2 years.        The note taken by the clerk as to the plea reads: "The defendant indicated that he now wished to plead guilty.   The charge was formally put again to the defendant, who pleaded not guilty but with mitigating circumstances. The clerk pointed out that he could not enter an equivocal plea. This was explained to him. He then indicated he understood and an unequivocal guilty plea was entered."        The applicant claims that his change of plea was influenced by the statement of a doctor who had told him that it was very unlikely that his allegations about the involuntary intoxication would be proven.   A few days later drugs were found with the tenants, who admitted having administered them to the applicant.        The applicant applied for leave to appeal.   Section 1 (b) of the Magistrates' Court (Criminal Appeals) (Guernsey) Law 1988 provides that there is no right of appeal where a person has pleaded guilty subject, however, to Section 2 (2), according to which "the Royal Court may in exceptional circumstances grant leave to appeal against conviction where the applicant pleaded guilty".        On 9 August 1995 the Deputy Bailiff of the Royal Court of Guernsey heard the applicant and decided that psychiatric evidence should be provided to show whether "exceptional circumstances" existed which would require leave to appeal against conviction even though the applicant had pleaded guilty.   The question turned on whether the applicant had understood the nature of the charge and whether he had intended to admit he was guilty of it. After hearing the opinions of two psychiatrists to the effect that it was unlikely that the applicant would still be suffering from the effect of intoxication when pleading guilty five days after the event, the Deputy Bailiff dismissed the application for leave to appeal on 29 February 1996 as he found that the applicant's plea was valid.        The applicant applied for leave to the Court of Appeal. His application was referred to the Deputy Bailiff for the granting of a certificate that sufficient grounds of appeal existed. This was refused by the Deputy Bailiff on 21 March 1996.   In his decision, the Deputy Bailiff noted that the Royal Court had not dismissed an appeal, but rather leave to appeal had been refused.   However, he considered that in any event, as there were no "exceptional circumstances" which called for leave to appeal, there were also no "sufficient grounds" for an appeal.        A further application, to the Court of Appeal, for leave to appeal was dismissed first by the Bailiff (as a single judge) on 7 May 1996 and then by the Full Court of Appeal on 22 July 1996 on the ground that no appeal lay to the Court of Appeal when leave to appeal had been refused by the Royal Court. The applicant`s petition to the Privy Council was dismissed on 19 December 1996.        In 1995 the applicant instituted proceedings against the police and a clerk.   COMPLAINTS        The applicant complains under Article 5 of the Convention that he was deprived of his liberty without knowing and understanding why as he was suffering from the effects of drugs.        Under Article 6 paras. 1, 2 and 3 (d) of the Convention the applicant alleges unfairness and claims that vital evidence was withheld from him by the police and that witnesses were not called to testify but only gave their statements to the police. He further claims that he was not proven guilty according to the law as his guilty plea was not safe and reliable. He also complains that there were no public hearings before the Royal Court and the Court of Appeal and that the proceedings before the Royal Court give rise to a suspicion of partiality. Also, the Deputy Bailiff of the Royal Court could not be impartial when deciding on the certificate as he had previously dismissed his leave to appeal.        Under Article 7 of the Convention the applicant claims that he was held guilty for of criminal offence in respect of an act which did not constitute a criminal offence when committed, as it was done in a state of involuntary intoxication.        The applicant also claims that he has been denied a right to an effective remedy, within the meaning of Article 13 of the Convention, as the Court of Appeal failed to grant him leave to appeal.   THE LAW   1.    The applicant complains, under Article 5 paras. 1 and 2 (Art. 5-1, 5-2) of the Convention, that he was deprived of his liberty without knowing and understanding why.        Article 5 (Art. 5) of the Convention, insofar as relevant, reads as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:            ...            c.     the lawful arrest or detention of a person effected            for the purpose of bringing him before the competent legal            authority on reasonable suspicion of having committed an            offence or when it is reasonably considered necessary to            prevent his committing an offence or fleeing after having            done so;              ...            e.     the lawful detention of persons for the prevention of            the spreading of infectious diseases, of persons of unsound            mind, alcoholics or drug addicts or vagrants;        2.     Everyone who is arrested shall be informed promptly, in a      language which he understands, of the reasons for his arrest and      of any charge against him."        The Commission first notes that the applicant did not raise issues concerning the lawfulness or circumstances of his arrest and detention in the domestic courts and the question therefore arises whether the applicant has exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention.   However, even assuming that no remedies were available to the applicant, the applicant was detained only on the night of 12 to 13 February 1995 which was more than two years before the introduction of the application.        It follows that the applicant has not complied with the six months rule in Article 26 (Art. 26) of the Convention, and that this part of the application must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant complains under Article 6 (Art. 6) of the Convention that he did not receive a fair trial in that vital evidence was withheld by the prosecution, and that he was not given the opportunity to call and examine witnesses before the Royal Court with the result that a proper assessment of the merits could not be made.        He further complains that he was not fit to make a rational decision when pleading and his plea was not "safe and reliable".        The applicant also complains about the hearings before the Royal Court and the Court of Appeal which were not public.   He further raises the issue of the impartiality of the Deputy Bailiff of the Royal Court, on the ground that the Deputy Bailiff first refused the application for leave to appeal on 29 February 1996 and then, on 21 March 1996, refused to grant a certificate that there were sufficient grounds of appeal. The applicant also complains that the Deputy Bailiff knew that the applicant had instituted proceedings against the police and clerk.        Article 6 (Art. 6) of the Convention, insofar as relevant, reads 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 ... by an ... impartial tribunal ...        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights:            ...            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 finds that the applicant's allegations under Article 6 paras. 2 and 3 (Art. 6-2, 6-3) are in fact allegations which amount to a challenge to the fairness of the proceedings as a whole. It will accordingly deal with the complaints as a whole under Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission first notes that the applicant`s principal grievance relates to his conviction as such.   It 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 (No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18 pp. 31, 45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74 p. 234).        The Commission notes that the applicant pleaded guilty to the charges put to him at his trial on 17 February 1995.   It is true that he subsequently claimed before the domestic courts that his plea should not be allowed to stand, but in the light of all the circumstances of the case - the clerk's clear note of the proceedings, and the extensive examination of the claim that the applicant had not been fit to plead which involved expert evidence by two psychiatric experts - the Commission cannot find that the decision of the Deputy Bailiff of 29 February 1996 was either arbitrary or unreasonable.        The Commission recalls that the manner in which Article 6 para. 1 (Art. 6-1) of the Convention applies in relation to appeal proceedings depends on the special features of the proceedings involved. Account must be taken of the entirety of the proceedings in the domestic legal order and the role of the appeal court therein: in the case of leave to appeal proceedings, the nature of those proceedings and their significance in the context of the proceedings as a whole must be considered, together with the powers of the appellate jurisdiction and the manner in which the proceedings are actually conducted (see for example Eur. Court HR, Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, para. 56; Fejde v. Sweden judgment of 29 October 1991, Series A no. 212-C, p. 67, para. 26).        In the present case, the Commission is faced with an application for leave to appeal against a conviction which was entered, after a plea of guilty which was held to be valid.   That application for leave to appeal was dealt with in the decisions of the Deputy Bailiff of 29 February 1996 (the substantive refusal of leave on the ground that there were no "exceptional circumstances") and of 21 March 1996 (when the Deputy Bailiff, after expressing doubt as to whether an appeal lay, found no sufficient grounds for an appeal in any event).   Thereafter, the Bailiff (on 7 May 1996) and the full Court of Appeal (on 22 July 1996) both confirmed that no appeal lay to the Court of Appeal.   The Privy Council's decision of 19 December 1996 gave no reasons for the dismissal of the applicant's petition to it.        The issues to be determined on the appeal were therefore limited: the only question was whether leave to appeal should be given in a case where the applicant had pleaded guilty, and that question turned on the existence of "exceptional circumstances".   The Commission does not accept that witnesses or evidence should have been called as neither witnesses nor further evidence would have been relevant to the question of whether leave to appeal should have been granted.        As to the absence of a public hearing before the Royal Court and the Court of Appeal, the Commission recalls that in the above-mentioned Monnell and Morris case, the European Court of Human Rights found that the absence of an oral hearing in criminal leave to appeal proceedings was compatible with Article 6 (Art. 6) of the Convention (p. 22, para. 58).   The position is the same in the present case: the Deputy Bailiff in his initial decision was only concerned with whether to grant leave to appeal because of "exceptional circumstances"; his second decision, that there were no sufficient grounds of appeal, followed from his first, and raised the limited question of whether a further appeal existed; the subsequent proceedings were limited to the question - unanimously answered in the negative - whether any further appeal lay. None of those decisions required a public hearing.        Similarly, the Commission is of the opinion that the fact that the Deputy Bailiff refused leave to appeal twice cannot give rise to doubts as to his impartiality: the Court of Appeal subsequently confirmed that no appeal lay against a decision refusing leave to appeal, so that the Deputy Bailiff could not, in any event, have granted leave on 21 March 1996.   The proceedings on that occasion, therefore, are not relevant to the determination of the criminal charge against the applicant.        Finally, the Commission does not accept that, even if the Deputy Bailiff knew of the private proceedings brought by the applicant against the police and the clerk, any fears could have been raised as to the Deputy Bailiff's impartiality on that ground.        It follows that the applicant`s complaints under Article 6 (Art. 6) of the Convention are manifestly ill-founded and have to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   3.    Under Article 7 (Art. 7) of the Convention the applicant claims that he was held guilty of a criminal offence in respect of an act which did not constitute a criminal offence when committed, as it was done in a state of involuntary intoxication.        Article 7 (Art. 7) of the Convention, insofar as relevant, provides as follows:        "1.    No one shall be held guilty of any criminal offence on      account of any act or omission which did not constitute a      criminal offence under national or international law at the time      when it was committed. ..."        The Commission notes that the applicant's intoxication at the time of the offence, involuntary or not, is not relevant to issues under Article 7 (Art. 7) of the Convention. The offence with which the applicant was charged, under Section 1 of the Offence against Police Officers (Bailiwick of Guernsey) Law 1963 was in force on the night of 12 to 13 February 1995.        Moreover, the applicant pleaded guilty to the offence as charged.        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.   4.    The applicant also claims that he has been denied a right to an effective remedy, within the meaning of Article 13 (Art. 13) of the Convention, as the Court of Appeal failed to grant him leave to appeal.          Article 13 (Art. 13) of the Convention 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 Commission recalls that the guarantees of Article 13 (Art. 13) of the Convention apply only to a grievance which can be regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).   The Commission finds that, in view of the above findings and to the extent that Article 13 (Art. 13) is applicable, there is no claim which could be regarded as "arguable" in connection with Article 13 (Art. 13) in the present case.        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.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission