CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 25942/94                       by Paul Matthew COYNE                       against the United Kingdom           The European Commission of Human Rights sitting in private on 28 November 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                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 23 November 1994 by Paul Matthew COYNE against the United Kingdom and registered on 14 December 1994 under file No. 25942/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       20 June 1995 and those in reply submitted by the applicant under       cover of letter dated 11 August 1995;         Having deliberated;         Decides as follows:   THE FACTS         The facts as submitted by the parties may be summarised as follows. The applicant is a British citizen, born in 1972 and resident in Bedford. He is represented before the Commission by Mr. Gilbert Blades, a solicitor practising in Lincoln.   A.     Particular circumstances of the case.         In 1992 the applicant was a non-commissioned officer in the Royal Air Force of the United Kingdom stationed at Brüggen, Germany.         In June 1992 the applicant applied for premature voluntary release and this was granted in July 1992 subject to payment. In November 1992 he returned to the United Kingdom with a view to his final discharge on 9 December 1992.         As a result of a police investigation into the applicant's financial activities while in Germany, his final release was turned down. Having been initially detained by the air force authorities in the United Kingdom, he was returned to Brüggen in June 1993.         Though the German and the air force authorities have concurrent jurisdiction over servicemen (by reason of the North Atlantic Treaty Organisation Status of Forces Agreement 1951), the air force authorities concluded that the applicant was best tried by air force court-martial.         In August 1993 the applicant was charged, pursuant to section 70(1) of the Air Force Act 1955, with four civilian criminal offences (the fourth charge being an alternative to the third) of using a false instrument together with obtaining services by deception contrary to the Forgery and Counterfeiting Act 1981 and the Theft Act 1968.         The Convening Officer was the Air Officer Commanding No. 2 Group, Royal Air Force, Rheindahlen and as such was the commander of all personnel serving in Germany. By order dated 21 January 1994, the Convening Officer convened a district court-martial, appointing all members of the court-martial by name.         The President of the court-martial was a Wing Commander of the Royal Air Force Station, Uxbridge and he was a permanent president. The other two members were a Squadron Leader of the Royal Air Force Station, Laarbruch and a Flight Lieutenant of the Royal Air Force Station, Gatow, respectively. Both of these members were stationed in Germany, were subordinate in rank to, and within the chain of command of, the Convening Officer. The Prosecuting Officer was appointed by the Convening Officer from the Directorate of Legal Services and was also within the Convening Officer's chain of command. A Judge Advocate was appointed by the Judge Advocate General's office.         The court-martial took place at the Royal Air Force Station, Brüggen on 26-28 January 1994. The applicant was found guilty of one of the charges (under the Forgery and Counterfeiting Act 1981) and was sentenced to nine months detention, dismissal from the air force and to be reduced to the ranks.         On 31 January 1994 the applicant presented a petition to the Confirming Officer (against conviction and sentence) claiming that the Judge Advocate had erred in his summing up of the case, that the finding of guilt on one charge was inconsistent with his acquittal on another charge and that the sentence was excessive. However, on 3 March 1994 the applicant's conviction and sentence were confirmed by the Confirming Officer who had obtained the advice of an assistant Judge Advocate (not the trial Judge Advocate).         On 8 March 1994 the applicant presented an appeal petition (against conviction and sentence) to the Defence Council. The Air Force Board took the decision on this petition (having obtained the advice of the Judge Advocate General) and informed the applicant's legal representative of its decision to reject this latter petition by letter dated 26 May 1994.         The applicant's subsequent application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court was accepted by a single judge of that court, not on the basis of any of the grounds presented by the applicant, but on the basis of a question raised by the single judge as to whether the Judge Advocate had properly advised the court-martial as to what was required to be proven in relation to an instrument being false. By judgment dated 11 October 1994 the applicant's appeal to the Courts-Martial Appeal Court was rejected, that court finding that the Judge Advocate had properly advised the court-martial.         No reasons were given for the decisions of the court-martial, the Confirming Officer or the Air Force Board. The applicant was legally represented before the Courts-Martial Appeal Court.   B.     Relevant domestic law and practice.   1.     General         The law and procedures in respect of court-martials for air force personnel are contained, inter alia, in the Air Force Act 1955 ("the 1955 Act") and in the Rules of Procedure (Air Force) 1972.         Under section 70(1) of the 1955 Act "civilian" offences are also offences under the 1955 Act. Therefore air force personnel can be tried on charges of civilian criminal offences under air force law and by the air force authorities. Jurisdiction issues between the United Kingdom air force authorities and the German authorities, in matters concerning servicemen stationed in Germany, are governed by the North Atlantic Treaty Organisation Status of Forces Agreement 1951.         Depending on their gravity, charges against air force law can be tried by a general, field or district court-martial convened by the Convening Officer. A district court-martial must consist of a President (who must not be under the rank of Flight Lieutenant) and not less than two other officers (each of whom must have had at least two years commissioned service). The President of the court-martial must be appointed by name by the Convening Officer and is normally one of a number of permanent Presidents. The Convening Officer may appoint the remaining members by name or by requiring a commanding officer to nominate an officer of the required rank. A Judge Advocate ("J.A.") may also be assigned to a district court-martial, though not as a member.          Each member of a 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 Air Force Act 1955,       without partiality, favour or affection, and I do further swear       that I will not on any account at any time whatsoever disclose       or discover the vote or opinion of the president or any member       of this court-martial, unless thereunto required in the due       course of law."   2.     The Convening Officer         The Convening Officer of a district court-martial must be a "Qualified Officer" or an officer (not below the rank of Flight Lieutenant) to whom the Qualified Officer has delegated his powers. A Qualified Officer is any officer not below the rank of Squadron Leader or corresponding rank who is in command of a body of the regular air forces or of the command within which a body of the regular air force is serving.         The Convening Officer is not responsible for the decision to charge the accused nor for the investigation of those charges. However, once the accused's commanding officer has decided that the accused should be tried by court-martial, the Convening Officer assumes responsibility for the case.         The Convening Officer is empowered, inter alia, to direct upon what charges the accused is to be tried, to decide the wording of those charges, to decide in what order the accused is to be tried on those charges and to ensure that the accused has been remanded for trial on those charges. The Convening Officer convenes a court-martial for each case and decides on the type of court-martial required. The convening order specifies, inter alia, the date, place and time of the trial, the name of the President, the details of the other members and whether a J.A. has been appointed. In this latter respect, if the Judge Advocate General does not assign a J.A. to a district court-martial, a J.A. may be assigned by the Convening Officer himself. The Convening Officer also appoints the Prosecuting Officer or directs a commanding officer to make this appointment. The Prosecuting Officer must be an officer subject to air force law or counsel assisted by such an officer. In serious cases the Prosecuting Officer is chosen from the staff of the Directorate of Legal Services (Air Force) and is answerable to the Director of Legal Services (Air Force).         The Convening Officer sends the charge sheet and convening order to the President and copies of these documents to the members of the court-martial and to the J.A.. He also 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.         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 latter 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 whether the Prosecuting Officer is legally qualified so as to allow the accused the opportunity to obtain his own legal representation. He must copy the accused at least 24 hours before the trial with, inter alia, the convening order, the charge sheet and the abstract of the evidence.         A 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).         The Convening Officer also usually acts as Confirming Officer.   3.     Judge Advocate General and Judge Advocates         The current Judge Advocate General was appointed 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.         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 J.A.'s receive, out of money provided by parliament, such salaries together with travelling and subsistence allowances as the Lord Chancellor may determine.         The Judge Advocate General's role is mainly advisory. He advises the Secretary of State for Defence on all matters touching and concerning the office of the Judge Advocate General and this advice includes advice on air force 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 air force law and retaining the records of courts-martial. He is a legal adviser to the Ministry of Defence and the relationship between the Judge Advocate General and the Ministry of Defence can be described as one of lawyer and client.         Once assigned to a court-martial, the J.A. must provide on request an opinion on any point of law or procedure to the prosecution and the accused prior to the court-martial hearing. During the hearing, with the consent of the court-martial, he must provide any opinion so requested. 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 (which must be recorded) 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.         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. Where an accused pleads guilty the J.A. has particular duties including satisfying 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 the charges. At the close of the court-martial hearing 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 members of 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 either on the decision on the charges or on the sentence.         Finally, the J.A. must ensure (in conjunction with the President) that the accused does not suffer any disadvantage during the hearing.   4.     The court-martial hearing         At the commencement of the court-martial the accused can object to individual members of the court-martial and such an objection is considered in closed court.         The accused is then asked to plead in respect of the charge. Once a plea of not guilty is entered the procedure is very similar to that followed in the Crown Court. After the prosecution has made its case the accused can submit that there is no case to answer. If this submission is not accepted then the J.A. advises the accused on the alternatives open to him and the defence case proceeds. Witnesses can be called for the prosecution and the defence and both sides can make a closing submission, the defence submission being the last. During the trial the court-martial may adjourn to consult the Convening Officer on points of law who must then take legal advice from the Judge Advocate General.         The members of the court-martial retire (without the J.A.) to deliberate on their findings, return and pronounce those findings. If the accused is found guilty or pleads guilty, the Prosecuting Officer puts in evidence the defendant's service record and other evidence having a bearing on the sentence to be imposed. The defence then makes a plea in mitigation and can call witnesses to support this plea. The members of the court-martial then retire (this time with the J.A.) to consider the sentence. The sentence is then announced in open court. There is no provision for the giving of reasons by the court-martial for its decision on the charges or on the sentence.   5.     Sentencing         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. In addition, a district court-martial cannot order imprisonment for more than two years. A court-martial must award one global sentence for all of the offences for 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. A decision can be reached by majority.   6.     Confirmation and post-hearing reviews         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 but the J.A. who attended the court-martial hearing does not proffer this advice. 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. Once confirmed, the conviction and sentence are then promulgated.         If the conviction and sentence have been confirmed, and if the accused wishes to leave open the option of an appeal to the Courts- Martial Appeal Court, he may present an appeal petition against conviction and sentence. The reviewing authority which normally decides upon appeal petitions of air force personnel is the Air Force Board which has the power to quash a sentence and to exercise the same powers as the Confirming Officer in relation to substituting and remitting or commuting sentences.         A petitioner is not informed, when making the relevant petition, of the identity of the Confirming Officer or of the reviewing authority considering his case nor is he told when such consideration will take place. No statutory or formalised procedures are laid down for the conduct of the procedures before the Confirming Officer and the reviewing authority and no reasons are given for the ensuing decisions. Neither the fact that advice has been received nor the nature of the advice received from the Judge Advocate General's office by the Confirming Officer or the reviewing authority is disclosed to the petitioner.   7.     Courts-Martial Appeal Court ("CMAC")         The CMAC has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division. The judges of this court include ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as are nominated by the Lord Chief Justice.         If an appeal petition is rejected by the Air Force Board an appellant may apply to a single judge of the CMAC (and, if necessary, also to the full court) for leave to appeal against conviction to that court. There is no provision for an appeal (by air force personnel) against sentence only although certain powers of revising such sentences, pursuant to an appeal against conviction, are available to the CMAC.         In considering the question of leave to appeal, the single judge or the CMAC shall have regard to any expression of opinion made by the Judge Advocate General that the case is a fit one for appeal and if any such expression is so made they may, without further consideration, give leave to appeal. The Judge Advocate General can also refer a matter to this court if he is of the opinion that the finding involves a matter of exceptional public importance.         As regards the substantive appeal, the CMAC must allow the appeal against conviction if it considers that the finding of the court- martial is, under all the circumstances of the case, unsafe or unsatisfactory or involves a wrong decision on a question of law. The appeal must also be allowed if there was a material irregularity in the course of the trial. In any other case the CMAC must dismiss the appeal.         In hearing the appeal, the CMAC can consider any question necessary to be determined for the purpose of doing justice in any case and may authorise a new trial (by court-martial) where a conviction is quashed in light of fresh evidence. It also has power, inter alia, to order the production of documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports from members of the court-martial or from the J.A. and order a reference of any question to a special commissioner for inquiry. All powers of the CMAC must be exercised by it insofar as it thinks necessary or expedient in the interests of justice.         An appellant must have the leave of the CMAC to attend any hearing in relation to the appeal before that court but he may present his appeal in writing. The CMAC will only give the appellant such leave where it considers that his presence will serve some useful purpose or is necessary in the interests of justice. Legal aid for an appeal to the CMAC is available under certain conditions and the appellant may obtain an order for costs in his favour if his appeal is allowed by the CMAC.         A further appeal, on a point of law of general public importance, can be made to the House of Lords with the leave of the CMAC.   COMPLAINTS   1.     The applicant complains under Article 6 para. 1 of the Convention that, in being tried by court-martial, he was denied a fair hearing by an independent and impartial tribunal established by law.   2.     The applicant also complains in his observations about delay by the authorities in dealing with his case, the extension of the applicant's date for discharge from the air force and about the procedure by which he was assessed for legal aid by the Director of Legal Services.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 November 1994 and was registered on 14 December 1994.         On 28 February 1995 the Commission decided to communicate the applicant's complaint as to the lack of a fair hearing by an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention to the respondent Government and to request written observations on the admissibility and merits of this complaint.         The Government's observations were received on 20 June 1995, after two extensions in the time-limit fixed for this purpose, and the applicant's observations in reply were submitted under cover of letter dated 11 August 1995.   THE LAW   1.     The applicant mainly complains under Article 6 para. 1 (Art. 6-1) of the Convention, the relevant parts of which read as follows:         "1. In the determination .... of any criminal charge against him,       everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law...."         The applicant essentially complains that, in being tried by court-martial, he did not receive a fair hearing, by an independent and impartial tribunal established by law. He submits that the arrangement between the United Kingdom and Germany, which allowed him to be tried by the air force authorities, meant that he was denied a trial in a civilian court (with a broad sentencing regime and a jury) on what were civilian criminal charges.         As regards the alleged lack of independence of the court-martial, the applicant refers, inter alia, to the rank and wide powers of the Convening Officer. He also claims that the Convening Officer controls court-martial proceedings through the Prosecuting Officer. He further submits that the members of the court-martial and the Prosecuting Officer depend on, inter alia, the convening authority for promotions, re-engagements and salary increases so that the members of the court- martial and the Prosecuting Officer will have their careers in mind when carrying out their functions. He also notes, in this respect, that there are no members of the judiciary appointed to a court-martial. The applicant further argues that the manner of convening and proceeding with a court-martial, together with the identity of those involved in the court-martial, establishes a close connection and institutional dependence between the prosecuting authority and the accused's commanding officer, the Convening Officer, the members of the court- martial, the Prosecuting Officer, the Judge Advocate, Confirming Officer and Air Force Board.         As to the question of impartiality, the applicant submits that the court-martial did not present an appearance of impartiality due, inter alia, to the manner in which its members were appointed, the duration of their terms of office, the lack of guarantees against outside pressures and the rank of those involved in the court-martial.         The applicant submits that he does not need to demonstrate an actual lack of independence and impartiality but rather that a reasonable person would perceive this to be the case.         In addition, the applicant argues that the proceedings were unfair because of, inter alia, the secrecy surrounding the proceedings, including the lack of reasons given for the decisions against him together with the non-disclosure of the advice given by the Judge Advocate to the court-martial on sentencing, by the Judge Advocate General to the Confirming Officer and by the Judge Advocate General's office to the Air Force Board. He also refers, in this respect, to his inability to appear before the Confirming Officer or the Air Force Board and he alleges that the sentence against him was unfair and unreasonable.         He further argues that courts-martial are not "established by law", within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, due, inter alia, to the manner in which they are convened and to the fact that the Confirming Officer can cancel the sentence of the court-martial. Finally, since there is no right to appeal to the Courts-Martial Appeal Court against sentence only and since that court could not rehear his case, it could not, according to the applicant, remedy the defects in the prior proceedings.         The Government point out, in the first place, that in light of the circumstances of this case and having regard to the charges against the applicant and to the operation of the North Atlantic Treaty Organisation Status of Forces Agreement 1951, a trial by court-martial was the only effective way in which the charges against the applicant could be heard.         As to the independence of the court-martial, the Government argue that the military identity and subordinate rank (to the Convening Officer) of the members of the court-martial do not mean that the court-martial lacks independence. The Government point to the oath sworn by the members, the lack of instruction by, or accountability to, a higher or outside authority and to the inability of any such authority to remove individual members of the court-martial. In addition, it is submitted that the convening of a court-martial on an ad hoc basis and the role of the Judge Advocate, being independent of the parties to the case, enhances its independence.         As regards the impartiality of the members of the court-martial, the Government note that the applicant has not made specific allegations as regards the subjective impartiality of those members and that the members, sitting as they do as individuals and reaching their conclusions independently of outside pressure or influence, satisfy the objective test of objective impartiality. Furthermore the Government argue that the proceedings, viewed as a whole, are fair in light of the procedural guarantees afforded to defendants.         The Government deny that the convening authority has any control over the promotions, pay and engagements of the court-martial members, such matters being the responsibility of the Promotions Board and the Armed Forces Pay Review Body, respectively. It is also denied that the Convening Officer can be equated with the executive or the prosecuting authority or that he controls the proceedings through the Prosecuting Officer. In addition, though two members of the court-martial together with the Prosecuting Officer were in the chain of command of the Convening Officer, it does not follow that they were accountable to the Convening Officer - the members of the court-martial, pursuant to their oath, were accountable to no one and the Prosecuting Officer was answerable to the Director of Legal Services. The President was not in the Convening Officer's chain of command. Therefore, the Government strongly dispute that a member's or the Prosecuting Officer's performance at a court-martial could affect their future evaluation by their superiors and that any member of the court-martial or the Prosecuting Officer would have career matters in mind when carrying out their functions on the court-martial.         As to the Courts-Martial Appeal Court, the Government note that the applicant does not challenge the independence and impartiality of the judges of that court. The Government submit that, if there was any defect in the court-martial proceedings, the applicant could have raised this matter (but he did not) in his appeal to the Courts-Martial Appeal Court.         The Government therefore submit that this complaint is manifestly ill-founded or, in the alternative, that it discloses no violation of the Convention.         The Commission considers that this complaint of the applicant raises serious issues of fact and law which are of such complexity that their determination should depend on an examination of the merits. This complaint cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.     In addition, the applicant complains about delay by the authorities in dealing with his case, the extension of the applicant's date for discharge from the air force and about the procedure by which the applicant was assessed for legal aid by the Director of Legal Services.         However, the Commission notes that these matters have been raised for the first time in the applicant's observations in reply submitted under cover of letter dated 11 August 1995 and that they have been introduced more than six months after the final decision in the applicant's case handed down by the Courts-Martial Appeal Court on 11 October 1994. The Commission therefore finds these complaints out of time and inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.       For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE without prejudging the merits the applicant's       complaints about the lack of a fair hearing by an independent and       impartial tribunal established by law;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission          President of the Commission         (H.C. KRÜGER)                        (S. TRECHSEL)