CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 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. 31145/96                       by Mark Anthony WILKINSON                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 1 July 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 13 April 1996 by Mark Anthony WILKINSON against the United Kingdom and registered on 24 April 1996 under file No. 31145/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations received from the respondent Government on      11 April 1997 and the observations in reply received from the      applicant on 5 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1969 and resident in Feltham, the United Kingdom. He is represented before the Commission by Mr. John Mackenzie, a solicitor practising in London.        The facts as represented by the applicant may be summarised as follows.   A.    Particular circumstances of the case        On 24 October 1990 the applicant, a soldier in the regular forces of the British Army, was serving in Northern Ireland when a permanent vehicle checkpoint was blown up by a bomb placed by the Irish Republican Army (IRA) as a result of which five members of the applicant's unit were killed. The applicant claims that he was deeply traumatised by this incident and he went absent from his unit.        He gave himself up to the army authorities at Hounslow, England in April 1995 and on 28 April 1995 he met the officer who was to be his defending officer. On 29 May 1995 the applicant was returned to his former barracks in Northern Ireland. A certificate, dated 29 May 1995 and signed by the applicant, confirms that he was provided with the information booklet, issued by the army and entitled "The Rights of a Soldier Charged with an Offence under the Army Act 1955".        In or around early June 1995 he was served with the abstract of evidence by the Unit Adjutant (who was later appointed Prosecutor in the case). In or around 4 June 1995 the applicant was formally remanded for trial by court-martial by his commanding officer. On 4 June 1995 the case was referred by the accused's commanding officer to a higher authority with a recommendation for trial by court-martial on a charge of absence without leave. The form B116 by which the case was referred, noted that the accused did not desire legal aid. On 6 June 1995 the Convening Officer signed the charge sheet charging the applicant on one count of absence without leave (contrary to section 38(a) the Army Act 1955) between 23 November 1990 and 27 April 1995. On 6 June 1995 the applicant returned to Hounslow barracks in England.        On 9 June 1995 the applicant was tried by district court-martial. The prosecutor and defending officers were not legally qualified. The applicant pleaded guilty to the charge and the proceedings were adjourned to allow a psychiatric report to be obtained. The applicant was remanded in custody. The psychiatric report confirmed that the applicant was suffering from Post Traumatic Stress Disorder and advised against a custodial sentence. In the section dealing with the applicant's fitness to plead, the psychiatrist answered in the affirmative the standard questions as to whether the accused was able to understand the charges against him, to object to any member of the court-martial and to instruct defending counsel, a legal representative or a defending officer. At the resumed hearing on 17 July 1995 the applicant was convicted of being absent without leave and was sentenced to 140 days imprisonment and to dismissal from the army.        On 31 July 1995 the Confirming Officer confirmed the finding but reduced the sentence to 14 days imprisonment and dismissal. On 2 August 1995 the conviction and sentence were promulgated and, having already served 14 days imprisonment, the applicant was immediately released from custody. The applicant then retained his present representative. By letter dated 31 October 1995 the applicant's representative was informed of the decision, taken by the Army Board, to quash the sentence of detention and to uphold the applicant's dismissal.   B.    Relevant domestic law and practice        The principal law and procedures applicable are contained in the Army Act 1955 ("the 1955 Act") prior to its amendment by the Armed Forces Act 1996 ("the 1996 Act"), which latter Act came into force on 1 April 1997. Accordingly, and apart from section 8. below, the following is an outline of the pre-1996 Act law and practice.        Subject to the sentencing power of a court-martial, a person convicted of absence without leave shall be liable to imprisonment for a term not exceeding two years (section 38(a) of the 1955 Act). A district court-martial was competent to impose such a sentence.   1.    General        Depending on their gravity, charges under the 1955 Act could be tried by district, field or general court-martial. These were not standing courts: they came into existence in order to try a single offence or group of offences. At the time of the events in question, a district court-martial consisted of a President, who could not be under the rank of Field Officer and was appointed by name by the Convening Officer, and at least two other officers, appointed either by name by the Convening Officer or, at the latter's request, by their commanding officer. Each member of the court-martial had to swear the following oath:        "I swear by almighty God that I will well and truly try the      accused before the court according to the evidence, and that I      will duly administer justice according to the Army Act 1955,      without partiality, favour or affection, and I do further swear      that I will not on any account at any time whatsoever disclose      or discover the vote or opinion of the president or any member      of this court-martial, unless thereunto required in the due      course of law."   2.    Legal Aid        The provision of legal aid is regulated by paragraphs 6.094-6.095 of the Queen's Regulations for the Army 1975 together with Chapter 6, Annex D to those Regulations. Legal aid by way of civilian professional assistance is available to members of the armed forces of all ranks who are to be tried by court-martial. Legal aid can only be applied for once the accused has been remanded for trial by court-martial by his commanding officer. A grant of legal aid is subject to the accused undertaking to make such financial contribution and/or down payment prior to the trial as may be assessed as appropriate.        The general principles followed in deciding whether a case justifies legal aid is that legal aid should be granted if it would have been granted had the case been brought before the criminal courts of the United Kingdom or, where an applicant is being brought to trial by court-martial, if an officer with legal qualifications is to prosecute, or points of legal difficulty are involved, or the expert examination of witnesses is required. The accused may alternatively ask for representation by a legally qualified member of the armed forces or can himself instruct a lawyer at his own cost.        A booklet entitled "The Rights of Soldiers Charged with an Offence under the Army Act 1955" is produced by the army and provides in the booklet that the commanding officer or a subordinate commander is to ensure that a copy of the booklet is given to a soldier charged with an offence. The information outlined above as regards legal aid is detailed in the information booklet and the first paragraph of that booklet points out that if it becomes likely that an accused is to be brought to trial by court-martial, he may choose some suitable and available person in the army to advise him and that, if necessary, the commanding officer will appoint an officer for this purpose.   3.    The Convening Officer        Before the coming into force of the 1996 Act, the Convening Officer of a district court-martial had to be a "qualified officer" or an officer not below the rank of Colonel to whom the qualified officer had delegated his or her powers. To be a "qualified officer", an officer had to be not below the rank of Field Officer or corresponding rank and in command of a body of the regular forces or of the command within which the person to be tried was serving.        The Convening Officer assumed responsibility for every case to be tried by court-martial. He would decide upon the nature and detail of the charges to be brought and was responsible for convening the court-martial. He would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the President and the details of the other members, all of whom he could appoint. He ensured that a judge advocate was appointed by the Judge Advocate General's Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.        Prior to the hearing, the Convening Officer was responsible for sending the abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the Convening Officer's consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it.        Rule 22(1)(m) of the Rules of Procedure (Army) 1972 provides that the Convening Officer also had to ensure that the accused had a proper opportunity to prepare his defence in accordance with Rule 25 of those Rules. In accordance with this latter provision, a defending officer or legally qualified counsel was appointed to defend an accused once remanded for trial by court-martial unless the accused stated in writing that he did not wish such an appointment to be made. However, if the accused asked for an officer by name (even an officer from another service) this officer was to be provided to the accused if it was possible and if the officer had no other essential military duties to perform.        The Convening Officer was also to ensure that the accused had legal assistance if required and the opportunity to contact defence witnesses, and he was responsible for ordering the attendance at the hearing of all witnesses "reasonably requested" by the defence. The Convening Officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice (section 95 of the 1955 Act). The Convening Officer usually also acted as Confirming Officer.   4.    The Judge Advocate General and judge advocates        The Judge Advocate General at the time of the events in question was appointed by the Queen in February 1991 for five years. He was answerable to the Queen and removable from office by her for inability or misbehaviour. He had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on army law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court- martial.        Judge advocates are appointed to the Judge Advocate General's Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister.        At the time of the events in question, a judge advocate was appointed to each court-martial, either by the Judge Advocate General's Office or by the Convening Officer. He was responsible for advising the court-martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the President, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. At the close of the hearing, the judge advocate would sum up the relevant law and evidence.        Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court-martial's deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court-martial and had no vote in the decision on conviction or sentence.   5.    The court-martial hearing        At the commencement of the trial, the accused could object to individual members of the court-martial, such objection being considered in closed court.        The accused was then asked to plead in respect of the charge. If a plea of not guilty was entered the procedure was similar to that followed in the (civilian) Crown Court. After the prosecution had made its case, the defence could enter a submission of no case to answer. If this submission was not accepted, the judge advocate would advise the accused on the alternatives open to him and the defence would proceed with its case. Witnesses could be called for the prosecution and the defence and both sides could make a closing submission, the defence submission being the last.        During the trial the court-martial could adjourn to consult the Convening Officer on points of law; the latter then had to take legal advice from the Judge Advocate General. The members of the court- martial retired (without the judge advocate) to deliberate on their findings, returned and pronounced those findings. Their votes and opinions were private and it was not disclosed whether the decision had been by a majority.        In the event of a conviction or a plea of guilty, the prosecuting officer put in evidence the defendant's service record and other evidence having a bearing on the sentence to be imposed. The defence made a plea in mitigation and could call witnesses in support. The members of the court-martial then retired (this time with the judge advocate) to consider the sentence.        The sentence was announced in open court. There was no provision for the giving of reasons by the court-martial for its decision on guilt or sentence.   6.    Confirmation and post-hearing reviews        Until the amendments introduced by the 1996 Act, the findings of a court-martial were not effective until confirmed by a "Confirming Officer". Prior to confirmation, the Confirming Officer used to seek the advice of the Judge Advocate General's Office, where a judge advocate different from the one who acted at the hearing would be appointed. The Confirming Officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence.        Once the sentence had been confirmed, the defendant could present a petition of appeal against conviction and/or sentence to the "reviewing authority", which was usually the Army Board in cases involving army personnel. It had the power to quash a finding and to exercise the same powers as the Confirming Officer in relation to substituting, remitting or commuting the sentence. A petitioner was not informed of the identity of the Confirming Officer or of the reviewing authority. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General's Office nor the nature of that advice was disclosed.   7.    Courts-Martial Appeal Court        The Courts-Martial Appeal Court ("CMAC") was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts- Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the (civilian) Court of Appeal, Criminal Division. Its judges included ordinary and ex officio judges of the Court of Appeal and judges of the High Court nominated by the Lord Chief Justice.        If an appeal petition was rejected by the Army Board an appellant could apply to a single judge of the CMAC (and, if necessary, also to the full court) for leave to appeal against conviction. There was no provision for an appeal against sentence only, although certain powers of revising sentences, pursuant to an appeal against conviction, were available to the CMAC.   8.    The Armed Forces Act 1996        Under the 1996 Act, the role of the Convening Officer ceases to exist and its functions are split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I to the 1996 Act).        The higher authority, a senior officer, decides whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case. The prosecuting authority is the legal branch of the relevant Service. Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria to those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. It also conducts the prosecution (the 1996 Act, Schedule I, Part II).        Court administration officers have now been appointed in each Service. They are independent of both the higher and the prosecuting authorities and are responsible for making the arrangements for courts- martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required are available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court-martial (the 1996 Act, Schedule I, Part III).        Each court-martial now includes a judge advocate as a member. His advice on points of law is binding on the court and he has a vote on sentence (but not on conviction). The casting vote, if needed, rests with the president of the court-martial, who gives reasons for the sentence in open court. The Judge Advocate General no longer provides general legal advice to the Secretary of State for Defence (the 1996 Act, Schedule I, Part III).        Findings by a court-martial are no longer subject to confirmation or revision by a Confirming Officer (whose role is abolished). A reviewing authority has been established in each Service to conduct a single review of each case. Reasons are now given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court-martial) is disclosed to the accused. A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (the 1996 Act, section 17 and Schedule V).     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention that he did not receive a fair and public hearing by an independent and impartial tribunal established by law.        He also complains under Article 6 para. 3(b) that he did not have adequate time and facilities to prepare his defence and under Article 6 para. 3(c) about the lack of legal aid and the identity of his defending officer. He further complains under Article 13 that he had no effective domestic remedy as regards these alleged violations of Article 6 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 April 1996 and registered on 24 April 1996.        On 27 November 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 11 April 1997 after an extension of the time-limit fixed for that purpose.   The applicant replied on 5 June 1997.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not have a fair and public hearing by an independent and impartial tribunal established by law. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "1. In the determination ... 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"        The Government have no observations as regards the admissibility of these complaints. As to the independence and impartiality of the court-martial, the Commission recalls the judgments of the Court in the Findlay and Coyne cases (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I and Coyne v. the United Kingdom judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V). The Court in those cases found that an army general court-martial and an air force district court-martial, respectively did not constitute independent or impartial tribunals. As to the fairness of the proceedings, the Commission also recalls its finding in its Report in the Findlay case that a court-martial found to lack independence and impartiality could not guarantee a fair trial (Eur. Court HR, Findlay v. the United Kingdom judgment, loc. cit., Comm. Report, para. 108).        The Commission notes that, in the present case, a district army court-martial was convened pursuant to the Army Act 1955 to try the applicant and that he pleaded guilty to a charge of absence without leave contrary to section 38(a) of the Army Act 1955.        In such circumstances, the Commission considers that these complaints of the applicant raise complex and serious issues under Article 6 para. 1 (Art. 6-1) of the Convention which require determination on the merits. It follows that these complaints of the applicant 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 the complaints inadmissible has been established.   2.    The applicant also complains under Article 6 para. 3(c) (Art. 6-3-c) of the Convention about the lack of legal aid for court- martial proceedings, pointing out that his defending officer was not legally qualified. He also complains under Article 6 para. 3(c) (Art. 6-3-c) that his defending officer was not independent as he was a member of the applicant's unit and an accused's unit is responsible for the initial prosecution of a case. In addition, he invokes Article 6 para. 3(b) (Art. 6-3-b) complaining that he did not have adequate time or facilities to prepare his defence. Article 6 para. 3 (Art. 6-3) of the Convention, insofar as relevant, reads as follows:        "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; ..."   (a)   As regards the availability of legal aid, the Government note that the applicant could have applied for legal aid under the military legal aid scheme when he was remanded for trial by court-martial, that he was fully informed of this possibility but that he did not make any such application. He was supplied on 29 May 1995 with the booklet published by the army on an accused's rights and the Government submit that the applicant confirmed that he did not wish to so apply referring to the form B116 dated 4 June 1995. Accordingly, the applicant cannot now claim a breach of Article 6 para. 3(c) (Art. 6-3-c) on the basis that he lacked legal representation (No. 8821/70, Comm. Report 8.12.83, D.R. 64, p. 5).        The applicant points out that it is not the practice to grant legal aid to those accused of absence without leave. The form B116 was not signed by the applicant but by his Commanding Officer who formed part of the prosecution. The applicant was unable to take "an independent line in arranging his defence" due to his psychiatric condition, his lack of education and his low rank. He submits that his Post Traumatic Stress Disorder only came to light following the court- martial's request for a psychiatric report and that, if the applicant had applied for legal aid at that stage, he would have been likely to have been granted it. However, without this additional complicating factor having been accepted at an earlier stage, no legal aid would have been granted. The applicant submits a letter from the Ministry of Defence addressed to his representative in another case which states that "straightforward cases involving purely military offences seldom justify the provision of legal aid".        Moreover, the applicant points out that once a complicating factor such as the apparent psychiatric impairment of the defendant comes to light in a civilian court, the court will of its own motion urge the defendant to seek legal representation if he is not represented. No such suggestion was made to the applicant by the court- martial or the army authorities or the defending officer (who was, in any event, in an ambiguous position). Without such prompting, it is hard for an accused to identify that he has any say in the making of other arrangements.        The Commission notes the potential sentence for the offence of absence without leave which is two years imprisonment. It further recalls that, although the applicant pleaded guilty, the determination of sentence constitutes a part of the determination of the charge (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I). Accordingly, the Commission considers that the proceedings involved the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court HR, Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, paras. 32-33, with further references).        The Commission also recalls that an accused has a right to be given free legal assistance if he has insufficient means to pay for legal assistance and if the "interests of justice" so require (see, for example, Eur. Court HR, Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, p. 16, para. 27). However, where a system of legal aid exists which an accused could have used and where the accused did not use that system or show that he wished to, the accused cannot complain in respect of this part of the proceedings of a violation of Article 6 para. 3(c) (Art. 6-3-c) of the Convention as the individual himself is considered responsible for the consequences of failing to exercise a right (No. 8821/70, Comm. Report 8.12.83, D.R. 64, p. 5).        The Commission observes that, even assuming that the applicant had insufficient means to engage a lawyer at the time, he could have applied for legal aid from the military legal aid scheme immediately after his remand for trial and he did not do so. Although he suggests that it would have been most unlikely that he would have obtained legal aid for this charge, legal aid is not excluded in such circumstances. Neither was it excluded that the applicant could have based such an application on his wish to raise his Post Traumatic Stress Disorder before the court-martial, an issue he accepts increases the chances of obtaining military legal aid.        The Commission further considers that the applicant was specifically informed of the possibility to apply for legal aid at least by being given the information booklet on 29 May 1995 prior to his remand for trial. In addition, the Commission does not consider that the applicant has demonstrated, by his reference to his education, rank and Post Traumatic Stress Disorder, that he was unable to form a view as to his wish for a legal representative or to make the relevant application for, or inquiry regarding, legal aid to his Unit Adjutant. In this latter respect, the Commission has had regard, in particular, to the contents of the psychiatric report which was requested by the court-martial. The consultant confirmed that the applicant suffered from Post Traumatic Stress Disorder but, nevertheless, also confirmed in the context of the applicant's fitness to plead that the applicant was able to understand the charges against him, to object to any member of the court-martial and to instruct defending counsel, a legal representative or a defending officer.        Moreover, although the applicant could not have obtained legal aid prior to his remand for court-martial, he does not submit that legal representation after remand would have been insufficient to address any pre-remand issue or incident which he considered prejudicial. In this latter respect, it is noted that the applicant does not dispute that he was absent without leave or the psychiatrist's view that he was fit to plead in that respect.   (b)   As to the applicant's complaint under Article 6 para. 3(c) (Art. 6-3-c) that his defending officer not independent, the Commission observes that Article 6 para. 3(c) (Art. 6-3-c) applies to the pre- trial stage of proceedings (Eur. Court HR, Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205). However, whether or not the applicant's unit was responsible for the prosecution of the charge against him, the Commission observes that the applicant was not confined to the choice of defending officer made by the Convening Officer. Pursuant to Rules 22 and 25 of the Rules of Procedure (Army) 1972 he could have requested any officer from any unit in any service by name to represent him, subject to it being possible and to the officer not having other essential military duties to perform. The applicant did not make that request and, in this respect, the Commission again refers to the fitness to plead section of the above- described psychiatric report.   (c)   Finally, the applicant complains under Article 6 para. 3(b) (Art. 6-3-b) that he had inadequate time and facilities to prepare his defence. However, other than his submissions as regards his defending officer and the availability of legal aid which the Commission has considered above under Article 6 para. 3(c) (Art. 6-3-c), the applicant has not further specified his complaint under Article 6 para. 3(b) (Art. 6-3-b) of the Convention.        In such circumstances, the Commission considers the applicant's complaints under Article 6 para. 3 (Art. 6-3) of the Convention manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    Finally, the applicant also invokes Article 13 (Art. 13) of the Convention arguing that he did not have an effective domestic remedy as regards his complaints under Article 6 (Art. 6) of the Convention. Article 13 (Art. 13), insofar as relevant, 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 ... "        As to the applicant's complaint under Article 13 in conjunction with Article 6 para. 3 (Art. 13+6-3), the Commission recalls that Article 13 (Art. 13) requires a remedy under domestic law if the applicant can be said to have an "arguable claim" of a violation of the Convention (Eur. Court HR, Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). However, in view of its conclusions above as to the applicant's complaints under Article 6 para. 3 (Art. 6-3) of the Convention, the Commission does not consider that the applicant can be said to have an "arguable claim" of a violation of those rights.        As to the applicant's complaint under Article 13 in conjunction with Article 6 para. 1 (Art. 13+6-1), the Commission recalls that the requirements of Article 13 (Art. 13) are less strict than, and are absorbed by, those of Article 6 para. 1 (Art. 6-1) of the Convention, Article 6 para. 1 (Art. 6-1) being the lex specialis (see, for example, No. 24142/94, Dec. 6.4.95, D.R. 81, p. 108). In such circumstances, the Commission considers it unnecessary to examine this complaint of the applicant under Article 13 (Art. 13) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint that he did not receive a fair and      public hearing by an independent and impartial tribunal      established by law; and        DECLARES INADMISSIBLE the remainder of the application.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ           Secretary                                  President      to the First Chamber                        of the First Chamber