Smith v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 25941/94

by Roger Michael SMITH

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 25 November 1994

by Roger Michael Smith against the United Kingdom and registered on

14 December 1994 under file No. 25941/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission and the respondent Government's

indication that they have no observations on the admissibility of the

applicant's complaints;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1958 and resident in

Southampton. He is represented before the Commission by

Mr. Gilbert Blades a solicitor practising in Lincoln. The facts as

submitted by the applicant may be summarised as follows.

A. Particular circumstances of the case.

On 19 and 20 October 1992 the applicant (who was at the time a

flight lieutenant in the Royal Air Force stationed in Germany) was

informed by his superior officers that there had been complaints made

about certain incidents involving his behaviour towards some

aircraftwomen.

By letter dated 21 October 1992 the applicant was given a written

warning which detailed the complaints made and stated that the

applicant was developing a reputation as a man who was a nuisance to

females and went on to point out that:

"This foolish behaviour will not be tolerated and you are to

ensure that no further occurrences take place. If you fail to

heed this advice you are warned that the consequences of your

actions may be either investigation of these and any future

incidents by HQ P&SS <Provost and Security Services> staff and

or raising of a special report under QR 1021 for consideration

by a higher authority. ... This written warning will be placed

on your personal file and will be reviewed, providing no further

incidents occur, in six months time."

The applicant submits that the during the discussions with his

superior, who gave him the warning letter, the applicant was told that

there would be no further action in relation to these matters

(including court-martial proceedings) provided there were no further

such occurrences. The applicant was then invited to make a statement

in response to the warning. The applicant then made a statement to his

superior giving his version of the incidents as he saw them.

Subsequently, the mother of one of the aircraftwomen (who had

made a number of complaints) contacted a Member of Parliament about the

incidents and a parliamentary inquiry ensued. The aircraftwoman in

question made a statement to that inquiry on 20 November 1992 to the

effect that, although she had previously stated to the air force

authorities on three occasions that she was satisfied that there should

be no police involvement in this matter, she had changed her mind.

Police investigations were then initiated including interviews

with the aircraftwomen who had already complained and other female

members of the air force where the applicant was stationed.

As a result, complaints by an additional two female members of

the air force were made to the police against the applicant. The

applicant submits that the police had access to the statement made by

the applicant in response to the warning letter and used this statement

to subsequently question the applicant.

In May 1993 the applicant was charged on five counts of conduct

to the prejudice of good order and air force discipline contrary to

section 69 of the Air Force Act 1955 in relation to his having

allegedly behaved with "undue familiarity" towards certain

aircraftwomen (which offence carries a potential penalty of two years

imprisonment).

He was also charged on three counts of indecent assault (a

civilian criminal offence) of one of the above-mentioned aircraftwomen

and another aircraftwoman. All charges related to a period of time

before the written warning.

The Convening Officer, by order dated 1 June 1993, convened a

general court-martial to be held in Rheindahlen, Germany. The court

martial took place on 14 - 17 June 1993. The Judge Advocate found,

inter alia, that no promise was made to the applicant that proceedings

would not issue against him.

On 17 June 1993 the applicant was found guilty on four of the

charges of conduct to the prejudice of good order and discipline and

not guilty on all remaining charges. He was sentenced to dismissal from

the air force.

The applicant petitioned the Confirming Officer and, by letter

dated 9 September 1993, the applicant's representative was informed

that the Confirming Officer had confirmed the applicant's conviction

and sentence.

On 14 September 1993 the applicant petitioned the Defence

Council. By letter dated 10 January 1994 the applicant's representative

was informed of the decision, taken by the Air Force Board, to reject

this petition.

The applicant was subsequently granted leave by a single judge

of the Courts-Martial Appeal Court for leave to appeal to that court.

On 15 November 1994 the full Courts-Martial Appeal Court rejected

the applicant's appeal.

B. Relevant domestic law and practice.

The Commission refers to the "Relevant domestic law and practice"

contained in the judgment in the Findlay case (Eur. Court HR, Findlay

v. the United Kingdom judgment of 25 February 1997, to be published in

Reports of Judgments and Decisions for 1997) and in its report on the

Coyne application (No. 25942/94, Comm. Report 25.6.96, unpublished).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he was denied a fair and public hearing by an independent and impartial

tribunal established by law.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 November 1994 and was

registered on 14 December 1994.

On 28 February 1995 the Commission decided to communicate and

adjourn the application.

On 2 July 1996 the Commission decided to request the Government's

observations. In their letter received on 7 November 1996 the

Government stated that they have no observations on the admissibility

of the application.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention that he was denied a fair and public hearing by an

independent and impartial tribunal established by law. The Government

have no observations on the admissibility of the applicant's

complaints.

The Commission considers that the application raises complex and

serious issues under Article 6 (Art. 6) 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 them inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber