Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY
Application No. 12370/86
by J.S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, 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 5 June 1986
by J.S. against the United Kingdom and registered on
2 September 1986 under file No. 12370/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant is an Irish citizen born in 1953 and resident in
Glasgow. The applicant is represented by John Macaulay, a solicitor.
The facts as submitted by the applicant may be summarised as follows.
On 6 August 1985, the applicant was arrested and charged with
committing a breach of the peace. He was subsequently summoned to
answer the charge at Glasgow District Court, on 20 February 1986. The
applicant's solicitor entered a plea of not guilty and the trial was
fixed for 25 March 1986.
On 13 March 1986, the applicant's solicitor applied for legal
aid to the District Court, submitting a legal aid form and a full
statement of the applicant's defence. The application also made it
clear that the applicant wished to call a witness. The magistrate was
not informed of the applicant's previous convictions. The application
was refused on 20 March 1986 as "not in the interests of justice".
After an adjournment, the trial was eventually held on
30 April 1986, the applicant's solicitor appearing on his behalf and
the Procurator Fiscal Depute for the prosecution. The Court heard two
police officers as witnesses for the prosecution and a witness called
for the defence. The magistrate at the conclusion of the proceedings
held the applicant to be not guilty of the charge. The applicant has
however incurred legal expenses of £306 in connection with the trial.
If the applicant had been found guilty, he could have faced a maximum
penalty of 60 days imprisonment. Since he had three previous
convictions, including two for breach of the peace, he would have
been at risk of a custodial sentence.
COMPLAINTS
The applicant complains that he was refused legal aid despite
the fact that he had a substantial defence and insufficient means. He
contends that the interests of justice required that he be given free
legal assistance. He invokes Article 6 para. 3 (c) of the Convention
in this regard.
The applicant also complains that he did not have proper
facilities to prepare his defence as a result of the refusal of legal
aid contrary to Article 6 para. 3 (b) of the Convention and that, in
refusing the application for legal aid, the magistrate must have acted
on the presumption that he was guilty, contrary to Article 6 para. 2
of the Convention.
The applicant further complains of a violation of Article 6
para. 3 (d) of the Convention. He contends that he was not able to
examine his defence witness under the same conditions as the witnesses
against him. He claims that he was unable formally to cite his
witness since he was ignorant of the procedure and would also have
become unable to pay the Sheriff Officers and the witness for any
expenses incurred in doing so. The applicant states that it was
fortunate for him that his witness who was a friend appeared
nonetheless since he was under no legal obligation to do so. The
applicant also complains that crown witnesses are reimbursed their
expenses and loss of wages.
THE LAW
1. The applicant complains that he was refused legal aid for his
defence although he had insufficient means and was later acquitted.
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention provides that:
"Everyone charged with a criminal offence has the following
minimum rights:
...
(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".
The Commission does not consider it necessary to decide
whether the applicant has fulfilled the exhaustion of domestic
remedies rule laid down in Article 26 (Art. 26) of the Convention, because it
finds the application anyway inadmissible for the following reasons:
The evaluation of the requirements of the interests of justice
under Article 6 para. 3 (c) (Art. 6-3-c) of the Convention lies in the first place
with the domestic courts. In this respect the Commission notes the
guidelines issued to Justices of the Peace in Scotland concerning
legal aid, which guidelines indicate the relevant factors to be taken
into account in deciding whether it is in the interests of justice
that legal aid should be granted. They include the consideration of
whether the charge is grave and, if proved, would place the accused at
serious risk of loss of liberty, whether the accused is able to follow
the proceedings and state his own case and whether the nature of the
defence involves expert examination of a witness for the prosecution.
The applicant alleges, however, that the magistrate in his
case ignored the interests of justice in refusing him legal aid on
20 March 1986.
The Commission does not find his allegation substantiated by
the facts of the case. There is no indication in the case-file that
in refusing the applicant legal aid, on the grounds that it was not
in the interests of justice, the magistrate did not apply the
aforementioned guidelines, having regard to the information available
to him in the applicant's legal aid application, or that he made his
decision on arbitrary grounds. It is of particular significance that
the applicant's previous convictions were apparently not known by the
magistrate when he considered the applicant's legal aid application
and that the offence with which the applicant was charged was as such
of a trivial nature.
In these circumstances, the Commission concludes that it has
not been shown in the present case that the interests of justice,
within the meaning of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention,
required a grant of free legal assistance to the applicant. 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.
2. The applicant complains that the refusal of legal aid by the
magistrate indicates that he presumed the applicant's guilt, contrary
to Article 6 para. 2 (Art. 6-2) of the Convention, which provides as follows:
"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."
However, the Commission repeats that the magistrate rejected
the applicant's application for legal aid on the grounds that it was
not in the interests of justice and that the magistrates' guidelines
indicate a number of factors be taken into account in reaching such a
decision. There is nothing in the facts of the application as it has
been presented to indicate that the magistrate failed to give the
matter proper consideration. Similarly the Commission finds no
evidence that the magistrate was motivated by any presumption of the
applicant's guilt. The Commission concludes, therefore, that this
complaint has not been substantiated and that the case fails to
disclose any appearance of a violation of Article 6 para. 2 (Art. 6-2) of the
Convention.
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.
3. The applicant also complains that the refusal of legal aid
deprived him of adequate facilities for the preparation of his defence
and of the ability to cite witnesses formally to appear.
Article 6 para. 3 (b) and (d) (Art. 6-3-b, 6-3-d) provide that:
"Everyone charged with a criminal offence has the following
minimum rights:
...
(b) to have adequate time and facilities for the preparation
of his defence;
...
(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."
However, in respect of Article 6 para. 3 (b) (Art. 6-3-b), the
Commission finds no evidence in the present case that the applicant had
inadequate facilities to prepare his defence. This finding is borne out by his
acquittal.
The Commission also notes with regard to Article 6 para. 3 (d) (Art.
6-3-d) that though the applicant was not able formally to cite his witness in
the same manner as the Crown witnesses the witness nonetheless appeared. The
applicant accordingly cannot claim to be a victim of any inequality of standing
which may have existed.
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
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)