CEDH · CASELAW;REPORTS;ENG — 5 septembre 1995

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 22107/93                          Alexander Findlay                               against                         the United Kingdom                      REPORT OF THE COMMISSION                    (adopted on 5 September 1995)                          TABLE OF CONTENTS                                                               Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-12) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-74) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 17-48). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law and practice           (paras. 49-74). . . . . . . . . . . . . . . . . . .9   III. OPINION OF THE COMMISSION      (paras. 75-113). . . . . . . . . . . . . . . . . . . . 14        A.    Complaints declared admissible           (para. 75). . . . . . . . . . . . . . . . . . . . 14        B.    Points at issue           (para. 76). . . . . . . . . . . . . . . . . . . . 14        C.    Article 6 para. 1 of the Convention           (paras. 77-111) . . . . . . . . . . . . . . . . . 14             1.    Applicability                (paras. 78-79) . . . . . . . . . . . . . . . 14             2.    Independence and impartiality                (paras. 80-108). . . . . . . . . . . . . . . 15                  CONCLUSION                (para. 109). . . . . . . . . . . . . . . . . 20             3.    Remaining points at issue                (para. 110). . . . . . . . . . . . . . . . . 20                  CONCLUSION                (para. 111). . . . . . . . . . . . . . . . . 21        D.    Recapitulation           (paras. 112-113). . . . . . . . . . . . . . . . . 21       APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 22   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a British citizen, born in 1961 and resident in Windsor. He was represented before the Commission by John Mackenzie, a solicitor practising in Middlesex.   3.    The application is directed against the United Kingdom. The respondent Government were represented by Mr. John Rankin, Agent, Foreign and Commonwealth Office.   4.    The case mainly concerns the independence and impartiality of a court-martial and of subsequent reviewing authorities and the fairness of the proceedings before those bodies. The application also concerns the reasonableness of the decisions reached and the sentencing options available. The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 28 May 1993 and registered on 22 June 1993.   6.    On 1 December 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 para. 1 of the Convention.   7.    The Government's observations were submitted on 19 April 1994 after two extensions of the time-limit fixed for this purpose.   The applicant replied on 3 June 1994.   8.    Having transferred the matter to the Plenary Commission, on 7 December 1994 the Commission decided to hold an oral hearing. The hearing was held on 23 February 1995. The Government were represented by Mr. John Rankin, Agent, Foreign and Commonwealth Office, Mr. P. Havers and Mr. N. May, both Counsel, and Ms. J. Murnane, Major- General A. Rodgers and Air Vice Marshal G. Carlton, as advisers. The applicant was represented by Mr. J. Mackenzie and Mr. G. Blade, Solicitors.   9.    On 23 February 1995 the Commission declared the application admissible.   10.    The text of the Commission's decision on admissibility was sent to the parties on 8 March 1995 and they were invited to submit such further information or observations on the merits as they wished. On 13 April 1995 the Commission granted the applicant legal aid for representation in his case.   11.   On 13 March and 10 May 1995 the applicant submitted further observations on the merits of the application. The Government submitted observations on 24 April 1995 and some additional factual observations by letter dated 26 May 1995.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   13.   The present Report has been drawn up by the Plenary Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present: (present at the hearing)             MM.   S. TRECHSEL, President                H. DANELIUS                C.A. NØRGAARD                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                N. BRATZA                J. MUCHA                E. KONSTANTINOV                D. SVÁBY   14.   The text of this Report was adopted on 5 September 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.        The Commission's decision on the admissibility of the application is attached hereto as an Appendix.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case                          Background facts   17.   The applicant joined the British Army in 1980 when he became a member of the Scots Guards. His service was due to terminate in or around October or November 1992 when he would have received a Resettlement Grant and, at the age of 60, an army pension.   18.   In 1982 the applicant took part in the Falklands campaign and he was wounded. The applicant suffered extreme stress as a result of his experiences.   19.   In 1987 the applicant sustained an injury during training for service in Northern Ireland. He fell from a rope and broke his arm and severely damaged his back. His back injury affected his performance during training and he suffered from depression as a result.   20.   In or about 1990 the applicant, who had become a Lance Sergeant, was serving with his regiment in Northern Ireland. On 29 July 1990, after a heavy drinking session, he held members of his own unit at pistol point and threatened to kill himself and certain of his colleagues. He fired two shots which were not aimed at anyone and subsequently surrendered the pistol. The applicant was then arrested.                             Pre-hearing   21.   On 31 July 1990 an army psychiatrist ("Doctor A") examined the applicant and stated that the applicant was responsible for his actions at the time of the incident. However, it was a combination of a number of stresses (including his back injury and posting in Northern Ireland) together with the applicant's heavy drinking on the day that led to the "almost inevitable" event. Doctor A recommended "awarding the minimum appropriate punishment" to the applicant.   22.   The applicant was charged by the Convening Officer with eight offences (six civilian and two military), pursuant to the Army Act 1955. The Convening Officer decided that the applicant should be tried by general court-martial.   23.   In order to establish that the applicant was fit to stand trial, he was examined, at the request of the army, by another army psychiatrist ("Doctor B") who was a civilian consultant psychiatrist with the Ministry of Defence since 1980. Her report, produced in January 1991, confirmed that the applicant was fit to plead and knew what he was doing at the time of the incident. However, his chronic back problem (which meant he was frustrated and depressed by not being fit for duty in his Northern Ireland posting) together with "his previous combat stresses and a very high level of alcohol ... combined to produce this dangerous behaviour."   24.   In March 1991 Doctor B produced another report, at the request of the army, confirming that while it was clear what were the stresses on the applicant, the nature of his reaction to them on the day in question was to be explained by the applicant's experiences in the Falklands war. She confirmed that similar incidents occurred in those who had previously experienced Post Traumatic Stress Disorder ("PTSD") and such incidents seemed to be a late feature of PTSD. Doctor B did not clearly say that the applicant suffered from PTSD. She confirmed that the consumption of alcohol on the relevant day was due to the applicant's condition and not a cause of it.   25.   The Prosecuting Officer assigned to the case informed the applicant's representative that Doctor B was unwilling to attend the court-martial. That officer, by letter dated 24 June 1991, also requested the applicant's representative to indicate which doctors he might require to attend and noted, in particular, that Doctor B's attendance might be required.   26.   In July 1991 the applicant brought a civil action against the Secretary of State for Defence on the basis of the negligence of the army medical authorities in failing to diagnose and treat his PTSD and also (but forming a lesser part of this action) in respect of his back injury received during training in 1987.   27.   In October 1991 a third psychiatrist ("Doctor C") produced a report which clearly confirmed that the applicant was suffering from PTSD as a result of the Falklands conflict and that the combination of his frustration and depression due to his chronic back problem, his posting in Northern Ireland and the consumption of alcohol triggered the incident. In addition, Doctor C was of the opinion that the applicant was psychotic, out of touch with reality and did not know what he was doing at the time of the incident.   28.   By order dated 31 October 1991 the Convening Officer convened a general court-martial. The Convening Officer was a Major General and was General Officer Commanding, London District ("GOC").   29.   The court-martial comprised a President and four other members. All were subordinate in rank to the Convening Officer. In addition, the President was on the Convening Officer's staff in London District and the remaining members served in units stationed within London District which the Convening Officer commanded. None of the members was legally trained:        - The President was a Colonel in the Territorial Army ("TA") and      part-time TA Adviser HQ, London District. He was appointed by      name by the Convening Officer and was not a permanent president.          - Member B was a Lieutenant Colonel (Royal Anglian) and his diary      was administered by the London District. He was appointed by name      by the Convening Officer and was a permanent president sitting      in the capacity of ordinary member.        - Member C was a Captain (2nd Battalion Coldstream Guards)      stationed in the London District. His reporting chain was to his      Officer Commanding, his Commanding Officer and the Brigade      Commander, after which his report could, in exceptional      circumstances, go to the GOC. He was a member of a footguard unit      and the Convening Officer, as GOC, was responsible for all      footguard units. He was appointed to the court-martial by his      commanding officer.        - Member D was a Major (2nd Battalion Grenadier Guards) stationed      in London District. The Convening Officer, as GOC, was this      member's second superior reporting officer. He too was a member      of a footguard unit. He was appointed to the court-martial by his      commanding officer.        - Member E was a Captain (Postal and Courier Department, Royal      Engineers (Women's Royal Army Corps)) appointed by her commanding      officer. The Postal and Courier Depot is under the direct command      of the Ministry of Defence and is administered by the London      District.   30.   The assistant prosecuting and defending officers were both officers from the 2nd Scots Guards stationed in the London District and had the same reporting chain as Member C.   31.   The Judge Advocate ("J.A.") was a barrister and assistant Judge Advocate with the Judge Advocate General's office.   32.   On 2 November 1991, though not fully cognisant of the opinion of Doctor B at that time, the applicant's representatives made a written request to the prosecuting authorities to ensure the appearance of Doctor B at the court-martial. On 5 November 1991, the prosecutor issued a witness summons requiring Doctor B's attendance.                      The court-martial hearing   33.   On 11 November 1991 the applicant appeared before the general court-martial. Doctor B did not appear in answer to the witness summons. The applicant was told that Doctor B would not be available and he claims that it was for this reason that he pleaded guilty to seven of the charges on the charge sheet (2, 3, 4, 5, 6, 7 and 8). Charges 2, 4 and 5 were charges of common assault (civilian offences), charges 3 and 6 were charges of conduct to the prejudice of good order and military discipline (a military offence) and charges 7 and 8 were charges of threatening to kill (a civilian offence). The applicant's representative did not request an adjournment (in light of Doctor B's absence) nor object to any of the members of the court-martial hearing the case.   34.   The applicant was also presented with a second charge sheet which contained two charges of a disciplinary nature relating to the consumption and storage of alcohol. He pleaded guilty to the former and not guilty to the latter charge. The Prosecuting Officer did not offer any evidence on the charges in respect of which the applicant pleaded not guilty and, having indicated the Convening Officer's concurrence before the court-martial, did not pursue these remaining charges.   35.   At the beginning of the hearing the applicant put before the court-martial the above described reports prepared by Doctors A, B and C. Doctor C was called by the applicant to give evidence in relation to PTSD. He confirmed in direct evidence his view that the applicant suffered from PTSD, that the effect on the applicant of the Falklands war was the main reason for his behaviour, that the applicant was not responsible for what he was doing at the time of the incident and that the applicant was in need of counselling for what was a well recognised disorder. During cross-examination Doctor C stated that this was the first time he had dealt with battle-related PTSD.   36.   The applicant's representative urged the court-martial that, in view of the fact that the applicant was suffering from PTSD at the time of the incident and of the little likelihood of his re-offending, the applicant should be allowed to complete the few remaining months of his service and leave the army with his pension intact and a minimal endorsement on his record.   37.   The applicant claims that during the trial the J.A. was hostile to him. In the first place, the Prosecuting Officer introduced, under rule 71(3)(a) of the Army Rules of Procedure (1972), mitigating evidence as to the applicant's record since the incident. Evidence was given to the effect that the applicant's conduct in the year since the offence had been described by his company commander as impeccable and that his commanding officer wished to retain the services of the applicant in his battalion. The J.A. interrupted and commented as follows:        "That is the view of the Commanding Officer, who is aware, is he,      that the accused has been found guilty by this court of two      offences of making a threat to kill members of his unit, and the      Commanding Officer wishes to retain him in the Battalion does      he?".   38.   It is the applicant's recollection that the J.A. snapped a pencil in irritation while speaking as above.   39.   Secondly, Doctor C gave evidence to the effect that the applicant, while suffering from PTSD, was not suffering from any other form of mental illness. The J.A. interrupted this evidence to ask for a pause to make a note of this point.   40.   The applicant was sentenced to two years' imprisonment, to reduction to the rank of guardsman and to dismissal from the army. No reasons were given for the level of the sentence. The applicant thereby suffered a reduction in his pension entitlements.                            Post-hearing   41.   The applicant petitioned the Confirming Officer (who was the same person as the Convening Officer) for a reduction in sentence. The Confirming Officer received advice from the Judge Advocate General's office and, on 16 December 1991, the applicant was informed that the sentence had been upheld.   42.   The applicant, who had been under close arrest since the morning before the court-martial hearing, was removed on 18 November 1991 to a Military Correctional Training Centre (a military prison) and was transferred from there to a civilian prison on 21 December 1991.   43.   The applicant petitioned the first Reviewing Authority (the Deputy Director General of Personal Services as delegate of the Army Board) concerning his sentence. That officer, who was not legally qualified, also obtained advice from the Judge Advocate General's office. By letter dated 22 January 1992, the applicant was informed that this petition had been rejected.   44.   The applicant then petitioned the second Reviewing Authority, the Director General of Personal Services (also not legally qualified) as delegate of the Army Board, in relation to his sentence. This petition was rejected on 10 March 1992.   45.   The applicant was not initially informed of the identity of the Confirming Officer or of the Reviewing Authorities, though the Government submit that he subsequently requested the identity of one Reviewing Authority and was given this information. Neither was he informed of the fact or nature of the advice obtained from the Judge Advocate General's office nor was he given reasons for the decisions confirming his sentence and rejecting his petitions.   46.   By application dated 10 March 1992, the applicant applied to the Divisional Court of the High Court for leave to challenge, by judicial review, the validity of the findings of the court-martial. In this application, the applicant challenged his sentence as being excessive, alleged that the proceedings were contrary to the rules of natural justice and further alleged that the J.A. was hostile to him during the court-martial. On 14 December 1992 the Divisional Court refused leave on the basis that the conduct of the court-martial had been entirely in accordance with the Army Act 1955 and rejected the applicant's submissions as to the attitude of the J.A. In particular, the Divisional Court found that the J.A.'s interventions were appropriate and noted that the applicant's representative had accepted at the court-martial hearing that the intervention by the J.A. during Doctor C's evidence was correct and appropriate.   47.   A report dated 16 January 1994 was subsequently prepared by Doctor B for the purposes of the civil action against the Secretary of State confirming her previous opinion, though now clearly labelling the effect of the Falklands conflict on the applicant as PTSD.   48.   In March 1994 the applicant's civil action was settled by the Secretary of State for Defence who paid the applicant £100,000 together with the applicant's costs without an admission of liability. The settlement did not differentiate between the claim in respect of PTSD and the back injury. The applicant claims that this was an effective acknowledgement by the Secretary of State for Defence that the applicant suffered from PTSD on the day of the incident because, prior to the settlement, the applicant was examined by a psychiatrist acting for the Secretary of State, who offered the applicant treatment for PTSD.     B.    Relevant domestic law and practice                               General   49.   The law and procedures in respect of courts-martial for army personnel are contained mainly in the Army Act 1955 ("the 1955 Act"), in the Rules of Procedure (Army) 1972 ("the 1972 Rules") and the Queen's Regulations (1975).   50.   Under section 70(1) of the 1955 Act, "civilian" offences are also offences under the 1955 Act. In such cases, where the charges are triable by the civilian courts and by court-martial, it is a matter of agreement that the final decision on jurisdiction lies with the civilian authorities but that the military authorities are only required to report certain cases which are likely to be retained by the civilian authorities (for example, if the relevant incident had a civilian involvement). Therefore, even if the charges involve civilian and army offences, in many cases army personnel can be tried by the army authorities on such charges under the 1955 Act.   51.   Depending on their gravity, charges against army law can be tried by district, field or general court-martial. A general court-martial must consist of a President (normally a brigadier or colonel in the army) and at least four other officers in the army. A Judge Advocate ("the J.A.") must also be appointed to a general court-martial, though not as a member. A general court-martial will be convened by a Convening Officer who is normally a major-general in the army. The President of the court-martial must be appointed by name by the Convening Officer, and the remaining members may be appointed by name or by the Convening Officer requiring a particular commanding officer to nominate an officer of the required rank.   52.   Each member of the court-martial must 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."                        The Convening Officer   53.   The Convening Officer must be a "Qualified Officer" (meaning he must be at least a field officer or of a corresponding rank) who is in command of a body of the regular forces or of the command within which the person to be tried is serving. The Qualified Officer can delegate this power to an officer under his command but not to an officer below the rank of colonel.   54.   The Convening Officer is not responsible for the decision to charge the accused nor for the investigation of those charges. However, once an accused's commanding officer has decided that the accused should be tried by court-martial, the Convening Officer assumes responsibility for the case.     55.   He is empowered, inter alia, to direct upon what charges the accused is to be tried and to decide the wording of those charges. The Convening Officer decides on the type of court-martial required and convenes a court-martial for each case. The convening order specifies, inter alia, the date, place and time of the trial, the name of the President and the details of the other members. The Convening Officer ensures that a J.A. is appointed by the Judge Advocate General's office, or failing such appointment, appoints the J.A. himself. He also appoints, or directs a commanding officer to appoint, the Prosecuting Officer from, in serious cases, Army Legal Services who is professionally answerable to the Director of Army Legal Services.   56.   The Convening Officer sends an abstract of the evidence to the Prosecuting Officer and to the J.A., and may indicate to the Prosecuting Officer the passages of the evidence which may be inadmissible. He procures the attendance at trial of all witnesses to be called for the prosecution. When charges are withdrawn the Convening Officer's consent is normally obtained though it is not necessary in all cases and when a plea to a lesser charge is made by the accused it cannot be accepted without the consent of the Convening Officer.   57.   The Convening Officer must also ensure that the accused has a proper opportunity to prepare his defence and proper contact with, inter alia, the defence witnesses. The Convening Officer must see that the accused is informed that he may require the attendance of defence witnesses and must order the attendance of witnesses "reasonably" requested by the defence. No other authority has this power. Witnesses not subject to military law may be summoned to attend the trial by order of the Convening Officer. The accused must also be informed by the Convening Officer if the prosecutor is legally qualified so that the accused has the opportunity to obtain his own legal representation.   58.   The court-martial can be dissolved by the Convening Officer either before or during the trial when required in the interests of the administration of justice (section 95 of the 1955 Act). In addition Queen's Regulations (para. 6.129) state that a Convening Officer can also comment on the "proceedings of a court-martial which require confirmation" and that those remarks will not form part of the record of the proceedings, will normally be communicated in a separate minute to the members of the court but in an exceptional case "where a more public instruction is required in the interests of discipline", the Convening Officer's comments may be made known in the orders of the command.   59.   The Convening Officer also usually acts as Confirming Officer.             Judge Advocate General and Judge Advocates   60.   The current Judge Advocate General was appointed to the office by the Queen in February 1991 for five years. He is answerable to the Queen and is removable from office by the Queen for inability or misbehaviour.   61.   A number of assistant and deputy J.A.'s are appointed to the Judge Advocate General's office by the Lord Chancellor and they must have at least seven and five years experience respectively as an advocate or barrister. The J.A. does not swear an oath upon appointment and is normally exempted from doing so at an individual court-martial. The J.A. is removable only by the Lord Chancellor for inability or misbehaviour but is responsible for the proper discharge of his functions to the Judge Advocate General. The Judge Advocate General and the J.A.'s receive, out of money provided by parliament, such remuneration as the Lord Chancellor may determine.   62.   The Judge Advocate General advises the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General and this advice includes advice on military law and the procedures and conduct of the court-martial system. He also advises the confirming and reviewing authorities on post-trial matters and in this respect he may, if necessary, give some general information as to the purpose and function of the review, the lawfulness of a particular finding or sentence, the range of sentences appropriate to a particular offence based on precedent, as to how the Crown Court might consider a similar offence and as to specific service aspects of the offence. He is also responsible for superintending the administration of army law and retaining the records of courts-martial. He is a legal adviser to the Ministry of Defence and the Government state that it is not inaccurate to describe the relationship as one of lawyer and client.   63.   A deputy or assistant J.A. is appointed to a court-martial by the Judge Advocate General's office or by the Convening Officer   and, once so assigned, the J.A. must provide on request an opinion on any point of law or procedure to the prosecution and the accused either outside of or during the court-martial. He advises on all questions of law and procedure that arise during the hearing and the court-martial must accept his advice unless it has weighty reasons for not doing so. On a number of specified matters, on which he is consulted by the court- martial, the opinion of the J.A. must be followed. The J.A. is also responsible for advising the court-martial as to any defect in its constitution or in the charge sheet.   64.   At the opening of the trial it is the practice for the J.A. to satisfy himself that none of the members of the court-martial either know the accused or have heard anything about the charges. At the close of the trial, the J.A. sums up the relevant law and evidence. If during the court-martial's deliberations on the charges (at which the J.A. cannot be present) further advice is required, then the court-martial must receive that advice in open court. The J.A. can, however, advise the court-martial in private on the general principles governing the approach to sentencing. The J.A. is not a member of the court-martial and has no vote in the decision on the charges or on the sentence.   65.   Finally, the J.A. must ensure (in conjunction with the President) that the accused does not suffer any disadvantage during the hearing. Where an accused pleads guilty the J.A. should explain to the accused the nature of the charges, the resulting difference in procedures and the full import of his plea. If the accused or his representatives subsequently make submissions that might imply that the accused is not guilty of the charges, the J.A. has a duty to satisfy the court-martial that the accused and his representative are not under any misapprehension as to the plea of guilty, and that the accused's clear admission has addressed all elements of all charges.                      The court-martial hearing   66.   An objection may be made at the start of a hearing to a member of the court-martial. Objections must be to individual members and not to the court-martial as a whole. Such an objection is considered in closed court (rule 27 of the 1972 Rules).   67.   When the applicant pleads guilty, the Prosecuting Officer outlines the facts and must then, pursuant to Rule 71(3)(a) of the 1972 Rules, put in evidence any circumstance which may have made the accused more susceptible to the commission of the offence by way of mitigation. The defence then makes a plea in mitigation and can call witnesses in mitigation of punishment pursuant to rule 71(5)(a) of the 1972 Rules. The members of the court-martial retire (with the J.A.) to consider the sentence, decide, return and announce the sentence. There is no provision for the giving of reasons by the court-martial for its decision.                           Sentencing   68.   Certain types of sentences are not available to a court-martial even if the charges relate to civilian offences. A court-martial cannot, inter alia, suspend a prison sentence, issue a probation order or sentence to community service.   69.   The level of sentencing power depends on the type of court- martial that is convened. A district court-martial is more restricted in terms of sentencing than a general court-martial. The maximum sentence laid down by the 1955 Act and civilian law, for the charges on the first charge sheet in respect of which the applicant pleaded guilty, are as follows:   - Charges 2, 4 and 5: six months' imprisonment or a fine - Charge 7: 10 years' imprisonment - Charges 3 and 6: imprisonment not exceeding two years.   70.   The court-martial must award one global sentence in relation to all the offences in respect of which the accused is found guilty. The opinions of members on sentence are given orally in closed court and these opinions shall be given in ascending order of seniority (rule 74 of the 1972 Rules). A decision can be reached by a majority.               Confirmation and Post-hearing reviews   71.   The court-martial's findings are not treated as a finding of guilt or on sentence until confirmed by the Confirming Officer. The confirmation procedure is automatic but if a petition is presented prior to the decision of the Confirming officer it will be considered. Prior to confirmation the Confirming Officer must consult the Judge Advocate General's office for advice. A different J.A. gives this advice when the Confirming Officer is dealing with a sentence of a general court-martial. The Confirming Officer can withhold confirmation, substitute a sentence, remit in whole or in part any punishment, commute a punishment for one or more lesser punishments and postpone the carrying out of the sentence.   72.   Once the Confirming Officer has confirmed the sentence, the defendant can petition the Reviewing Authorities. A petitioner can have more than one review. The relevant Reviewing Authorities were the Queen, the Army Board as delegate of the Defence Council, the Deputy Director and the Director General of Personal Services (Army) at the Ministry of Defence as delegate of the Army Board and any officer superior in command to the Confirming Officer. The Reviewing Authorities may consult the Judge Advocate General's office for advice; they have 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.   73.   A petitioner is not informed, when making the relevant petition, of the identity of the Confirming Officer or of the Reviewing Authorities. No statutory or formalised procedures are laid down for the conduct of the post-hearing reviews and no reasons are given for decisions delivered subsequent to the post-hearing reviews. Neither the fact that advice has been received nor the nature of the advice received from the Judge Advocate General's office by these bodies is disclosed to a petitioner.   74.   A Courts-Martial Appeal Court (which is made up of civilian judges) can hear appeals from a court-martial but there is no provision for such an appeal against sentence when the accused pleads guilty.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   75.   The Commission has declared admissible the applicant's complaints that the court-martial, the Confirming Officer and the Reviewing Authorities lacked independence and impartiality, that the proceedings before those bodies were unfair, that their decisions were unreasonable and that the sentencing options available were limited.   B.    Points at issue   76.   Accordingly, the points at issue in the present case are whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention:        - as regards the independence and impartiality of the court-      martial, the Confirming Officer and the Reviewing Authorities;      and        - as regards the fairness of the proceedings before the above-      mentioned bodies as well as the reasonableness of the decisions      of and the sentencing options available to those bodies.   C.    Article 6 para. 1 (Art. 6-1) of the Convention   77.   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... ."   1.    Applicability   78.   The Government argue that Article 6 para. 1 (Art. 6-1) does not apply to the post-hearing proceedings as these proceedings are best understood as pleas in mitigation rather than appeals forming part of the overall procedure which must satisfy Article 6 (Art. 6) of the Convention.   79.   The Commission recalls that the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention includes, not only the determination of the guilt or innocence of the accused, but also the determination of his sentence (cf. No. 8289/78, Dec. 5.3.80, D.R. 18 p. 166). The Commission also notes that the Confirming Officer and the Reviewing Authorities had submissions and advice to consider in relation to the appropriate sentence to be awarded and had the power to significantly change that sentence. Accordingly, the Commission is satisfied that these proceedings involved the determination of the applicant's sentence and, as such, the determination of a criminal charge against him.   2.    Independence and impartiality   80.   The applicant submits that the organisation and internal structure of the court-martial and the post-hearing reviewing authorities meant that they were not, or were not seen to be, independent or impartial.   81.   In this respect, the applicant refers, inter alia, to the extensive powers of the Convening Officer before, during and after a court-martial hearing. He claims that there is a strong inference that the Convening Officer is the prosecuting authority and submits that the members of the court-martial were military personnel subordinate to and otherwise closely related to the Convening Officer. He contends that there are few guarantees against outside pressures because, inter alia, the appointment of the members is for a specific court-martial only, the members return to their military duties after the court-martial, the Judge Advocate ("J.A.") is closely linked to the Ministry of Defence and the J.A. has, in any event, no vote in decisions of the court-martial. The Confirming Officer is normally the same person as the Convening Officer and the Reviewing Authorities were members of the armed forces with no legal training who were advised by the Judge Advocate General's office.   82.   The applicant also submits that, in addition to the above structural problems, his defence of Post Traumatic Stress Disorder raised a military issue of some importance and sensitivity which the military authorities were unwilling to accept.   83.   The applicant further submits that the J.A.'s hostility to him during the court-martial hearing was indicative of his lack of impartiality.   84.   The Government, in the first place, submit that it should be borne in mind that the special disciplinary requirements flowing from the vital duties of the armed forces require a separate code of military law and, in turn, a separate military judicial system.   85.   Against this background, the Government refer to the many guarantees in place to guard against outside pressures on the members of the court-martial. The members must take an oath and none are subject to instruction from, or accountable to, a higher authority as regards their functions in the court-martial. None of the members can be removed on an individual basis (except after a successful challenge at the commencement of a hearing) and the entire court-martial can be dissolved only in the interests of the administration of justice by the Convening Officer, which is an enhancement of the protections available. The decisions of the court-martial are by a majority and the members do not disclose the nature of their votes to third parties. The convening of the court-martial on an ad hoc basis is a guarantee against outside influence because the members have no interest in renewing a term of office.   86.   The Government also refer to many structural and procedural elements which indicate the independent functioning of the court- martial and of the post-hearing reviewing authorities. In this respect the Government contend, inter alia, that the prosecuting authority was Army Legal Services from where the Prosecuting Officer was appointed and not the Convening Officer. The Convening Officer assumes responsibility for the setting up of the court-martial and his work in this respect is largely administrative in nature. As regards the make- up of the court-martial, the Government point out that the members were chosen from diverse regiments, only two were appointed by name by the Convening Officer and none was immediately subordinate to or had a direct prior personal relationship with the Convening Officer. The applicant, though he could have, did not object to the constitution of the court-martial.   87.   The Government also emphasise the crucial role played by the J.A., a civilian judicial officer independent of the armed forces, in ensuring a fair trial and the role of the Judge Advocate General's office in advising at the confirming and reviewing stages.   88.   Furthermore, the Government do not accept that the applicant has demonstrated any subjective bias on the part of the J.A. and point out that the Divisional Court did not accept this either. Moreover, the Government dispute that the applicant's defence of Post Traumatic Stress Disorder raised an issue of army policy and reject any assertion by the applicant that this matter affected the proceedings as unfounded, untrue and an attack on the integrity of the members of the court-martial.   89.   As regards the applicant's complaint as to the impartiality of the   members of the court-martial, the J.A., the Confirming Officer and the Reviewing Authorities, the Commission recalls that for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention the existence of impartiality must be determined according to a subjective test, that is on the basis of a personal conviction of a particular judge in a given case, the personal impartiality of a judge being assumed until there is proof