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FOURTH SECTION
CASE OF MARTIN v. THE UNITED KINGDOM
(Application no. 40426/98)
JUDGMENT
STRASBOURG
24 October 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Martin v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
judges,
and Mr T.L.Early, Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 40426/98)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a United Kingdom national, Mr Alan Martin (“the
applicant”), on 10 March 1998.
- The applicant was represented by Mr G. Blades, a
solicitor practising in Lincoln. The United Kingdom Government (“the
Government”) were represented by their Agents, Mr C. Whomersley
and subsequently Mr J. Grainger, of the Foreign and
Commonwealth Office.
- The applicant complained under Articles 3 and 6 §
1 about his trial by court-martial.
- The application was submitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).
- The application was allocated to the Third Section of
the Court (Rule 52 § 1 of the Rules of the Court). Within the
Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- On 29 February 2000, a Chamber of the Section decided
to communicate the case to the Government and the parties each filed
observations on the admissibility and the merits of the complaints.
- By letters to the parties of 12 April 2002, the Section
Registrar requested the parties to submit additional comments in
light of the Court’s judgment in Morris v. the United
Kingdom, no. 38784/97, ECHR 2002 I.
- On 17 December 2002, the Chamber elected to
re-communicate the application to the Government under Rule 54 §
2 (b) Rules of Court and adjourned the case pending the judgment of
the Grand Chamber in Grieves v. the United Kingdom [GC], no.
57067/00, ECHR 2003 XII. The Chamber also decided that under the
provisions of Article 29 § 3 of the Convention and Rule 54A, it
would examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- The applicant was born in 1976 and, at the time of the
introduction of his application, was serving a sentence of life
imprisonment in England.
- In February 1994 the applicant was living with his
family in Germany, where his father was an Army Corporal serving in
the Support Unit of the Rhine Garrison. On 8 February 1994 the
applicant was charged with the murder of a young civilian woman who
had been working in the Support Unit and whose body had been found in
woods near to the army base.
- As a family member residing with a member of the Armed
Forces, the applicant was subject to military law (see paragraph 25
below). The German authorities waived jurisdiction pursuant to the
NATO Status of Forces Agreement 1951 (see paragraph 21 below).
- On 8 February 1994 the Commander of the Support Unit
was appointed to act as the applicant’s Commanding Officer. The
latter decided to refer the case to the Higher Authority with a view
to the applicant being tried by general court-martial. The Higher
Authority submitted the case for trial by general court-martial, and
the court-martial was convened by the Commanding Officer (henceforth,
“the Convening Officer”). The applicant obtained military
legal aid on 10 February 1994.
- In the meantime, the applicant’s father was
posted to England and returned there on 24 March 1994. Despite his
father’s return, the applicant remained subject to military law
as the proceedings had already commenced (see paragraph 26 below).
The applicant returned to England in April 1994 where he was
detained. His father was discharged from the army in November 1994.
- The applicant was returned to Germany in time for his
court-martial which commenced on 21 April 1995. The court-martial
board was composed of a President, who was not a permanent president,
and six ordinary members. Four of the members were senior officers,
all of whom were subordinate in rank to the Convening Officer and the
President and one of whom was within the Convening Officer’s
chain of command. Two members were civilian civil servants, who came
from the United Kingdom solely for the purpose of the trial, and were
placed under the Convening Officer’s command while in Germany,
although they were not in his reporting chain.
- The applicant’s representative submitted, inter
alia, that the trial of a young civilian by court-martial was
inherently unfair and oppressive and thus an abuse of process. The
atmosphere in a military court would be very different from that of a
civilian court and the applicant would not do himself justice. In
particular, it was unfair and oppressive that he should be returned
to stand trial in Germany after he had spent many months in detention
in England and after his father had ceased to be subject to military
law. Lastly, if tried by jury, a majority of 10 to 2 votes would be
necessary to convict him, whereas a simple majority vote would
suffice in a trial by court-martial.
- These submissions were considered by the Vice-Judge
Advocate General and were rejected, as was an application for an
adjournment to allow proceedings for judicial review to commence. The
trial ended with the applicant’s conviction on 3 May 1995. In
accordance with the provisions of the Army Act 1995, the verdict of
the court-martial was confirmed by a Confirming Officer
(see paragraph 28 below).
- The applicant appealed to the Courts-Martial Appeal
Court, which had the power to quash the conviction if it considered
it unsafe. The Lord Chief Justice, Lord Bingham of Cornhill, giving
judgment on 30 July 1996, held, dismissing the appeal:
“... We have some considerable sympathy with the
appellant’s complaint. With the benefit of hindsight, it seems
plain that the trial could have been conducted in England without
undue difficulty. It would in our view have been preferable if this
young appellant, whose subjection to military law was purely
vicarious and involuntary, had been tried here with all the
procedural safeguards which procedure in the ordinary criminal courts
affords. We cannot, however, stigmatise these proceedings as abusive.
They were strictly in accordance with a procedure prescribed by
Parliament to apply in such cases. There was not, as is accepted, any
attempt to over reach or oppress or prejudice the appellant. He had
all the safeguards which a defendant in any court-martial is entitled
to enjoy. Steps were taken to ensure that all members of the tribunal
save one were not under the command of the convening officer, and
also to ensure that the convening officer and the confirming officer
were not the same person. Had the appellant been held in Germany to
await trial, as he could have been, his claim to trial in England
would have appeared weaker. Whether or not it proved necessary in the
event to adduce the oral evidence of German factual witnesses, the
greater availability of such witnesses as a trial in Germany was a
legitimate reason for favouring trial there.
We are satisfied that these proceedings were not an
abuse of process.”
- The appeal court certified a question of law for the
House of Lords as to whether proceedings conducted in accordance with
the 1955 Act could be considered abusive. On 9 July 1997 the House of
Lords granted leave to appeal. Having heard the applicant’s
legal representatives, on 16 December 1997 the House of Lords
unanimously dismissed the appeal. Lords Slynn of Hadley and Hope of
Craighead expressed the view that at first sight the decision to
prosecute the applicant—a civilian aged only 17 at the time of
the murder—by court-martial had been inappropriate. However, as
Lord Hope explained:
“It is not difficult to understand the utility of
[section 209 of the Army Act 1955: see paragraph 24 below], in view
of the greatly increased opportunities which were by then available
for families and other civilian personnel to accompany the forces
when serving overseas. Had the law not been changed in this respect,
civilians and followers would have had to have been brought to trial
in the local civil courts in the language and according to the
procedures in use in those courts and, if sentenced to imprisonment,
to serve the sentence in a local prison. ...
Fundamental to the appellant’s argument in the
present case is the proposition that the purpose of [the extension of
jurisdiction in section 9 of the 1861 Act: see paragraph 29 below]
was to extend to murders committed abroad the right of every person
in this country who is accused of murder to have his or her guilt
declared by means of a jury trial. ... It seems to me that another,
and more likely, explanation is that the legislation was enacted to
ensure that the grave offences with which it deals should not go
unpunished when committed abroad by a British citizen. ...
In view of what I have said above I do not believe that
the proceedings by way of court-martial in this case can be said in
themselves to have been an abuse of process. ... The question to
which I now turn is whether there is any basis in the information
which is available to us for describing any of the decisions taken by
those in authority at the various stages in this case as so unfair
and wrong as to show that the conviction in this case was unsafe.
...”
- Lord Hope went on to examine the factors which would
have had to have been taken into account when considering whether to
prosecute the applicant by court-martial in Germany or by jury trial
in England:
“The timing of any consideration of the matter by
the Director of Public Prosecutions would, in my view, have been of
critical importance to a decision as to whether there was any
unfairness in this case which might be said to render the conviction
unsafe. It cannot be assumed that the Director would have been
willing to take proceedings in England without knowing more about the
factors which he would have wished to take into account. One obvious
factor, I would have thought, was the availability of witnesses. In
his letter of 14 June 1994 to the Attorney General the Director of
Army Legal Services had stated that many of the witnesses were German
and that they could not be forced to attend a trial in England.
Further details were provided at the request of the Attorney General
in a letter by the Director of Army Legal Services dated 25 November
1994. In this letter it is stated that there were 13 German witnesses
who could be divided into three categories—those who saw the
appellant in the woods near the scene of the murder, those concerned
with the finding of the body and police and forensic experts. The
defence had not yet indicated what evidence would be agreed. The
Director thought that, while some of their evidence might be agreed,
it was unlikely that this would include the police and forensic
experts. He believed that they were the witnesses who would be most
unlikely to cause difficulties if asked to travel to England to give
evidence. He added that one of the forensic scientists who was
responsible for examining secretions and bloodstains—a matter
which was of crucial importance in this case as there were no
eyewitnesses—was being difficult to deal with and would only
attend meetings if they were arranged through the German public
prosecutor in the nearest large town. He explained that these
witnesses were German because the police investigation was commenced
by the German civil police as it was initially assumed that a German
civilian had committed the crime. ...
I have not forgotten that Lord Bingham of Cornhill CJ
[see paragraph 18 above] said in his judgment that it was clear, with
the benefit of hindsight, that the trial could have been conducted in
England without due difficulty. But the Director of Public
Prosecutions would have had to have taken his decision well before
the trial, in view of the arrangements which would have had to have
been made for the appellant to be transferred into the hands of the
civil authorities in England and for the attendance of the witnesses.
In the event, as the respondent has recorded in his written case, no
agreement was reached, despite several written requests and
reminders, about any of the evidence until the commencement of the
trial when the evidence of the witnesses was agreed piecemeal during
the opening days. This account of what happened strongly suggests
that at the stage when the Director of Public Prosecutions would have
had to have taken his decision he would have had to assume that the
important evidence of the German witnesses would not be agreed before
the trial and that the attendance of the German witnesses would be
necessary. ...
Conclusion
... The proceedings were conducted within the rules laid
down by Parliament. There is no sound basis for thinking that, at the
time when a decision about this would have had to have been taken, a
prosecution in the English courts within a reasonable time would have
been seen to be practicable. The alternatives lay between taking
proceedings by way of court-martial in Germany, leaving the matter in
the hands of the German public prosecutor or taking no proceedings at
all. ...”
II. RELEVANT NON-CONVENTION LAW AND PRACTICE
A. The NATO Status of Forces Agreement 1951
- The 1951 agreement, as supplemented by the
Supplementary Agreement of 1959 (subsequently amended in 1971, 1981
and 1993) provides in Article VII(1):
“1. Subject to the provisions of this Article,
the military authorities of the sending State shall
have the right to exercise within the receiving State all criminal
and disciplinary jurisdiction conferred on them by the law of the
sending State over all persons subject to the military law of that
State;
the authorities of the receiving State shall have
jurisdiction over the members of a force or civilian component and
their dependents with respect to offences committed within the
territory of the receiving State and punishable by the law of that
State.
- Article VII(3)(a) provides:
“3. In cases where the right to exercise
jurisdiction is concurrent, the following rules shall apply:
(a) The military authorities of the sending State shall
have the primary right to exercise jurisdiction over a member of a
force or a civilian component in relation to
(i) offences solely against property or security of that
State, or offences solely against the person or property of another
member of the force or civilian component of that state or of a
dependent;
(ii) offences arising out of an act or omission done in
the performance of official duty.”
B. The Army Act 1955
- Section 70 of the 1955 Act provides:
“(1) Any person subject to military law who
commits a civil offence, whether in the United Kingdom or elsewhere,
shall be guilty of an offence against this section. ...
A person shall not be charged with an offence against
this section committed in the United Kingdom if the corresponding
civil offence is ... murder.”
- Section 209(2) of the Act states:
“Subject to the modifications hereinafter
specified, Part II of this Act shall at all times apply to a person
of any description specified in the Fifth Schedule to this Act who is
within the limits of the command of any officer commanding a body of
the regular forces outside the United Kingdom, and is not subject to
military law ... apart from this section ... as the said Part II
applies to persons subject to military law ...”
- The Act identifies in its Fifth Schedule the civilians
outside the United Kingdom who are subject to Part II of the Act when
not on active service. They include, at paragraph 5:
“Persons forming part of the family of members of
any of Her Majesty’s Naval, Military, or Air Forces and
residing with them or about to reside or departing after residing
with them.”
- The trial of those who have ceased to be subject to
military law is expressly provided for by section 131 of the Act:
“Subject to the provisions of the next following
section, where an offence under this Act triable by Court-Martial has
been committed ... by any person while subject to military law, then
in relation to that offence he shall be treated, for the purposes of
the provisions of the Act relating to ... trial and punishment by
Court-Martial ... as continuing subject to military law and
notwithstanding his ceasing at any time to be subject thereto.”
- Since the Armed Forces Act 1976, where a civilian
defendant is to be tried, civilian Crown servants can be detailed as
members of the court-martial. In practice, most criminal offences
allegedly committed by a civilian dependent would be tried by a
Standing Civilian Court (similar to a Magistrates’ Court), with
trial by court-martial reserved for the most serious offences.
- The law and procedures which applied generally to the
applicant’s court-martial were contained in the Army Act 1955,
the Rules of Procedure (Army) 1972 and the Queen’s Regulations
1975 (for which, see Findlay v. the United Kingdom, judgment
of 25 October 1997, Reports of Judgments and Decisions 1997-I,
§§ 32-51). From 1 April 1997 (after the conclusion of the
applicant’s court-martial) the Armed Forces Act 1996 came into
force which modified certain provisions of the Army Act 1955 (see,
generally, Cooper v. the United Kingdom [GC], no. 48843/99, §
104, ECHR 3003-XII; Grieves v. the United Kingdom [GC], no.
57067/00, § 69, ECHR 2003-XII).
C. The Offences against the Person Act 1861
- The basic rule of the common law is that the
jurisdiction of the criminal courts in the United Kingdom is confined
to crimes committed within the territory of each court. An exception
is provided by section 9 of the 1861 Act, which gives jurisdiction to
British courts in respect of alleged murders and manslaughters
committed by British citizens anywhere in the world.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The applicant complained that, in all the
circumstances of the case, he had been subjected to degrading
treatment in violation of Article 3. Article 3 provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The Government asked the Court to find this complaint
manifestly ill-founded.
- The Court finds that the applicant has failed to
substantiate his complaint. In particular, there is no evidence that
the applicant, who had his eighteenth birthday one week after the
trial had begun, was subjected to any treatment in the procedure or
conduct of the court-martial that attained the minimum level of
severity required under Article 3 (cf. T. v. the United Kingdom
[GC], no. 24724/94, ECHR 1999, §§ 60-78). Accordingly,
the Court considers the applicant’s complaint under Article 3
to be manifestly ill-founded and inadmissible pursuant to Article 35
§ 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that his trial by
court-martial had been unfair, contrary to under Article 6 § 1
of the Convention, which provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The Government contended that the complaint should be
declared manifestly ill-founded, but did not raise any other specific
objection to its admissibility.
- The Court considers that the complaint raises
questions of law which are sufficiently serious that its
determination should depend on the merits, and no other grounds for
declaring it inadmissible have been established. The Court therefore
declares the complaint admissible and considers the merits below in
accordance with its decision to apply Rule 29 § 3 (see paragraph
8 above).
B. The Merits
1. The Government’s submissions
- The Government contended that Article 6 does not
guarantee the right for a civilian to be tried by a civilian criminal
court, but simply the right to trial by an independent and impartial
tribunal. The applicant’s case should be distinguished from
Incal v. Turkey, (judgment of 9 June 1998, Reports
1998 IV), where the applicant had been charged with an offence
directly concerning a threat to the security of the country, and was
tried by a national security court specifically set up to deal with
cases affecting Turkey’s territorial integrity. In the present
applicant’s case the charge was an ordinary offence of murder,
not an offence specially created to combat a threat to the
Government, nor one which affected the military any more than the
civilian population. The offence did not contain any special
characteristics which might encourage the military members of the
court-martial to take into account irrelevant considerations.
- There were sound reasons for trying the applicant on
German territory under court-martial, in particular the fact that a
majority of the witnesses were German and it might have been
difficult to secure their attendance to give evidence in England. A
court-martial avoided the possibility that the applicant would have
to undergo trial in the German domestic courts with proceedings in a
foreign language and with only German legal counsel to assist him, in
addition to having to serve his sentence in a foreign jail. The
applicant was tried by court-martial pursuant to the 1951 NATO
Agreement (see paragraph 21 above). Moreover, the applicant was
familiar with the military system, its structure and its terminology,
having spent his life in the military community.
- In relation to the procedural aspects and constitution
of the court- martial, the Government submitted that the applicant’s
case was clearly distinguishable from Findlay. Two of the
members of the court-martial were civilians who were not in any way
subordinate to the Convening Officer and had been posted from the
United Kingdom to Germany specifically to enable them to sit as
members of the court-martial. Only one of the military personnel on
the board was directly under the Convening Officer’s command.
Steps were taken to ensure that the Convening Officer was not the
same individual as the Confirming Officer. Although the Convening
Officer had power to dissolve the court-martial, as in Findlay,
he could do so only in prescribed circumstances. The applicant did
not complain that his conviction was unsafe or that the court-martial
had conducted itself unfairly in any way. The applicant’s plea
of abuse of process had been addressed to the Vice-Judge Advocate
General alone, in public but in the absence of the court-martial
members. The Vice-Judge Advocate General was a senior judge appointed
by the Lord Chancellor with the same guarantees of independence as
any judge in a civilian British court. The abuse of process argument
was, moreover, reviewed and dismissed by the Courts-Martial Appeal
Court and the House of Lords.
2. The applicant’s submissions
- The applicant contended that, as in Incal, he
was tried by a military tribunal for a non-military offence. There
were no sound reasons for trying him by military court and no
evidence that the Convening Officer even considered whether it was
necessary to proceed by way of court-martial or instead to arrange
for a civilian trial in England.
- Concerning the independence and impartiality of the
court-martial, the applicant did not accept that the facts of his
case were significantly different to those of Findlay. The
first instance tribunal was an ad hoc court. The
Convening Officer played a central role, which included deciding the
charge, selecting the members of the court and appointing the
prosecutor. All the military members of the court-martial board were
subordinate in rank to the Convening Officer and the two civilians
were civil servants who were subordinate in rank to the Convening
Officer and, having been posted to the Convening Officer’s
jurisdiction, were subject to military discipline and under his
command while in Germany. Although the Confirming Officer was not the
same person as the Convening Officer, it was significant that the
role of “Confirming Officer” was abolished by the Army
Act 1995 because it was not a judicial body. The Vice-Judge Advocate
General was not a member of the tribunal. All submissions of law were
made to him alone and he gave his advice on sentencing to the board
in private. Rather than providing an adequate guarantee of
impartiality, he effectively prevented the court-martial from
considering the abuse issue at all. The Court of Appeal and House of
Lords were bound by domestic law and could not stigmatise the
court-martial proceedings because they were conducted in accordance
with that law.
3. The Court’s assessment
- In order to establish whether a tribunal can be
considered “independent”, regard must be had, inter
alia, to the manner of appointment of its members and their term
of office, to the existence of guarantees against outside pressures
and to the question whether the body presents an appearance of
independence. In this latter respect, what is at stake is the
confidence which such tribunals in a democratic society must inspire
in the public and, above all, as far as criminal proceedings are
concerned, in the accused. In deciding whether there is a legitimate
reason to fear that a particular court lacked independence or
impartiality, the standpoint of the accused is important without
being decisive. What is decisive is whether his doubts can be held to
be objectively justified (Cooper, § 104; Grieves,
§ 69).
- There are two aspects to the question of
“impartiality”: the tribunal must be subjectively free of
personal prejudice or bias, and must also be impartial from an
objective viewpoint in that it must offer sufficient guarantees to
exclude any legitimate doubt in this respect (ibid.). The present
applicant did not suggest that anyone involved in his court-martial
process was subjectively biased against him. Since the concepts of
independence and objective impartiality are closely linked, the Court
will consider them together in the present case (ibid.).
- It recalls, by way of preliminary remark, that there
is nothing in the provisions of Article 6 to exclude the
determination by service tribunals of criminal charges against
service personnel. The question to be answered in each case is
whether the individual’s doubts about the independence and
impartiality of a particular court-martial can be considered to be
objectively justified and, in particular, whether there were
sufficient guarantees to exclude any such legitimate doubts (see
Cooper, § 110).
- It is, however, a different matter where the national
legislation empowers a military court to try civilians on criminal
charges (Ergin v. Turkey (No. 6), no. 47533/99, § 41, 5
May 2006). While it cannot be contended that the Convention
absolutely excludes the jurisdiction of military courts to try cases
in which civilians are implicated, the existence of such jurisdiction
should be subjected to particularly careful scrutiny, since only in
very exceptional circumstances could the determination of criminal
charges against civilians in such courts be held to be compatible
with Article 6 (op. cit., §§ 42 and 44). The power
of military criminal justice should not extend to civilians unless
there are compelling reasons justifying such a situation, and if so
only on a clear and foreseeable legal basis. The existence of such
reasons must be substantiated in each specific case. It is not
sufficient for the national legislation to allocate certain
categories of offence to military courts in abstracto (op.
cit., § 47).
- In the present case, the power to try the applicant by
court-martial had a clear and foreseeable legal basis, namely section
209(2) of the 1955 Act (see paragraphs 24-26 above). Together with
the Judge Advocate at first instance and the Court Martial Appeal
Court, the House of Lords examined in detail whether such proceedings
would be fair and appropriate, and found, generally, that the law
permitting for the civilian members of a military entourage stationed
abroad to be tried by court-martial was of utility. Moreover, the
House of Lords found that in the applicant’s particular case
there were sound practical reasons militating, at the time the
Director of Public Prosecutions made his decision, in favour of his
trial by court-martial in Germany (see paragraphs 19-20 above). While
the Court has considerable doubts whether such considerations
were sufficiently “compelling” to justify the trial of a
civilian before a military tribunal, it
is not necessary for it
finally to decide the point since it considers, for
the reasons set out below, that the composition, structure and
procedure of the applicant’s court-martial were in themselves
sufficient to raise in him a legitimate fear as to its lack of
independence and impartiality.
46. In Findlay, the Court held that Mr Findlay’s
fears about the independence and impartiality of a court-martial
established under the provisions of the Army Act 1955 were
objectively justified. The Court considered that the members of the
court-martial were not sufficiently independent of the Convening
Officer, who was central to the prosecution and closely linked to the
prosecuting authorities. In particular, the Court referred to the
Convening Officer’s powers to decide the charge, convene the
court-martial and appoint the members and the prosecuting and
defending officers as well as to provide abstracts of evidence,
procure the attendance of witnesses and dissolve the court-martial
before or during the trial when required in the interests of the
administration of justice (see Findlay, § 74). The
Court held that these fundamental flaws were not remedied by the
presence of safeguards, such as the involvement of the Judge
Advocate, who was not himself a member of the court-martial and whose
advice to it was not made public.
- As in Findlay, the applicant’s
court-martial was established under the provisions of the Army Act
1955. Neither party contends that the functions and powers of the
Convening Officer differed significantly from that described in
Findlay.
- In expressing concern in Findlay at the lack of
independence of the members of the court-martial from the Convening
Officer, the Court emphasised in particular three factors. First, all
military members of the tribunal were subordinate in rank to the
Convening Officer; secondly, three out of five members were directly
or ultimately under his command and all served in units that were
under his command; and thirdly, the Convening Officer had the power
to dissolve the tribunal in prescribed circumstances (Findlay,
§ 75).
- In the present applicant’s case, all six members
of the tribunal were subordinate in rank to the Convening Officer,
and the senior member was under his ultimate command. The two
civilian members of the court-martial who came from the United
Kingdom solely for the purposes of the trial were under the Convening
Officer’s command for the purpose of offences committed while
they were in Germany. It has not been contended that the Convening
Officer’s powers to dissolve the tribunal differed from those
in Findlay.
- The Government assert that it was central to the
Court’s conclusion in Findlay that many of the
court–martial members were directly or ultimately under the
command of the Convening Officer and in the absence of this key
factor, the Court should conclude that the applicant’s
court-martial was sufficiently independent for the purposes of
Article 6. The Court does not accept this submission. It notes that
in Cooper, none of the ordinary members was serving under the
command of the convening authority, prosecuting authority or higher
authority (these three authorities had been created by the Army Act
1996 to replace the role of Convening Officer and separate the
convening, prosecuting and referral functions of the court-martial).
The Grand Chamber nonetheless considered the junior rank of the
ordinary members (who were subordinate to the permanent president and
may have been subordinate to other participants in the court-martial
including the prosecuting authority) and the ad hoc nature of
their appointment, might give rise to concern as to their
independence and required “particularly convincing safeguards
against outside pressures being brought to bear on those officers”
(Cooper, § 120).
- The Court notes that two out of the six ordinary
members sitting on the applicant’s tribunal were civilians and
recalls the opinion expressed in previous judgments that the
involvement of civilians in the court-martial process contributes to
its independence and impartiality (see Grieves § 78
and Cooper § 117). However, the mere presence of
civilians during the proceedings will not of itself provide adequate
guarantees of independence and impartiality; the role that the
civilians play in the court-martial process must also be taken into
account. Thus, in Grieves, the presence of a
civilian Court Administration Officer was found to contribute to the
independence and impartiality of the tribunal (Grieves §
78), but was not sufficient in itself to ensure that the
court-martial process as a whole conformed with Article 6.
Conversely, in
Cooper the Court considered that the civilian post of Judge
Advocate provided “one of the most significant guarantees of
the independence of the court-martial proceedings”. In reaching
this conclusion, significant emphasis was placed on the pivotal role
played by the Judge Advocate, including his ability to give binding
rulings and directions on points of law to the ordinary members of
the court-martial (Cooper § 117). In the present case,
while the participation of civilians as ordinary members of the
court-martial may have contributed somewhat to its independence, they
did not have sufficient influence over the proceedings as a whole,
including over the military members of the court-martial, to satisfy
the independence and impartiality requirements of Article 6.
- Furthermore, the Court rejects
the Government’s submission that the presence of the civilian
Vice-Judge Advocate General offered an adequate guarantee of
impartiality in this case. As previously mentioned, the Court in
Cooper accepted that the presence of a Judge Advocate offered
a significant safeguard of independence and impartiality. In addition
to his civilian status and legal training, emphasis was placed
on the Judge Advocate’s influence over the proceedings,
including his status as a member of the tribunal, his ability to give
binding directions and his participation in the deliberations on
sentencing. By contrast, the role of Judge Advocate in Findlay did
not constitute such a valuable safeguard and could not remedy the
“fundamental flaws” in the court-martial system prior to
the coming into force of the Army Act 1996. In particular, the Court
noted that the Judge Advocate was not a member of the tribunal and
his advice on sentencing was not made public. The Government do not
present any evidence that the Vice-Judge Advocate General’s
role in the proceedings was different from or more extensive than
that of the Judge Advocate in Findlay. Notwithstanding that
the Vice-Judge Advocate General was a senior judge appointed by the
Lord Chancellor, the Court concludes that his influence and
involvement in the tribunal proceedings was not sufficient to
guarantee the independence and impartiality of the applicant’s
court-martial.
- Finally, the Government emphasise that the Convening
Officer did not take on the role of Confirming Officer as he did in
Findlay, although they do not seek to argue that the role of
the Confirming Officer per se was in any way
different. Concerns about the fact that the
court-martial’s verdict was not final and binding, but was
instead subject to review by a non-judicial body, were expressed
Findlay (§ 78) and also in Cooper (§§ 130–131).
However, given that the present applicant’s
case was in fact reviewed by the Courts-Martial Appeal Court, the
Court considers that the role of Confirming Officer, although an
unfortunate and unnecessary feature of the proceedings, did not have
a prejudicial effect on the independence of the court-martial in this
case.
- For the reasons stated above,
the Court considers that the distinctions between the court-martial
in the present case and that in Findlay are not sufficiently
material to persuade it to reach a different conclusion. The
essential safeguards that were lacking in Findlay were also
absent in the present case and, as in Findlay, the Judge
Advocate did not provide the same guarantees of independence and
impartiality as in Cooper. The Court considers the applicant’s
concerns about the independence and impartiality of his tribunal to
be objectively justified. Accordingly it finds that there has been a
violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant did not claim any compensation for
non-pecuniary or pecuniary damage.
B. Cost and Expenses
- Under this head, the applicant claimed GBP 6,797.66,
comprised mainly of solicitor’s fees for the preparation of the
application, perusal of the Government’s submissions and
preparation of written replies to the Court.
- The Government contended that this sum was excessive,
both by reference to the hourly rate of GBP 160 and the number of
hours claimed. They submitted that an award of EUR 4,000 would be
reasonable.
- The Court notes that the parties were requested to
make submissions on three separate occasions between 2000 and 2002
(see paragraphs 6-8 above). It awards EUR 9,000, less EUR 630 which
the applicant has already received in legal aid from the Council of
Europe.
C. Default Interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 6
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 8,370 (eight thousand three hundred and seventy
euros) in respect of costs and expenses, to be converted into pounds
sterling at the rate applicable on the date of delivery of the
present judgment;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early J. Casadevall
Registrar President
