CEDH · CASELAW;REPORTS;ENG — 25 juin 1996

.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 } .s76CF415B { page-break-before:always; clear:both }                EUROPEAN COMMISSION OF HUMAN RIGHTS                        Application No. 25942/94                           Paul Matthew Coyne                                 against                           the United Kingdom                        REPORT OF THE COMMISSION                      (adopted on 25 June 1996)                            TABLE OF CONTENTS                                                           Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 16-58) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-27). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 28-58). . . . . . . . . . . . . . . . . . .4     III. OPINION OF THE COMMISSION      (paras. 59-92) . . . . . . . . . . . . . . . . . . . . 11        A.    Complaints declared admissible           (para. 59). . . . . . . . . . . . . . . . . . . . 11        B.    Point at issue           (para. 60). . . . . . . . . . . . . . . . . . . . 11        C.    As regards Article 6 para. 1 of the Convention           (paras. 61-90). . . . . . . . . . . . . . . . . . 11             1.    Applicability                (para. 62) . . . . . . . . . . . . . . . . . 11             2.    Independence and impartiality                (paras. 63-86) . . . . . . . . . . . . . . . 11                  CONCLUSION                (para. 87) . . . . . . . . . . . . . . . . . 16             3.    Remaining points at issue                (paras. 88-89) . . . . . . . . . . . . . . . 16                  CONCLUSION                (para. 90) . . . . . . . . . . . . . . . . . 16        D.    Recapitulation           (para. 91-92) . . . . . . . . . . . . . . . . . . 16     APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 17     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 1972 and resident in Bedford. He was represented before the Commission by Gilbert Blades, a solicitor practising in London.   3.    The application is directed against the United Kingdom. The respondent Government were represented by John Rankin and, subsequently, Susan Dickson, both Agents, Foreign and Commonwealth Office.   4.    The case mainly concerns the independence and impartiality of a court-martial together with the fairness of proceedings before that body. The applicant invokes Article 6 para. 1 of the Convention.     B.    The proceedings   5.    The application was introduced on 23 November 1994 and was registered on 14 December 1994.   6.    On 28 February 1995 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 20 June 1995 after two extensions of the time-limit fixed for this purpose. The applicant replied under cover of letter dated 11 August 1995.   8.    Having transferred the matter to the Plenary Commission on 13 September 1995, the Commission declared admissible the applicant's complaints under Article 6 para. 1 of the Convention on 28 November 1995. It also declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 6 December 1995 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 31 January 1996.   10.   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 upon which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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.   J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL   12.   The text of this Report was adopted on 25 June 1996 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.   13.   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.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   The applicant joined the Royal Air Force of the United Kingdom in 1990 and by 1992 he was a non-commissioned officer stationed at Brüggen, Germany.   17.   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.   18.   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.   19.   The air force authorities concluded that the applicant should be tried by a court-martial of the Royal Air Force.   20.   In August 1993 the applicant was charged, pursuant to section 70(1) of the Air Force Act 1955, with four civilian criminal offences (the second and fourth charges being expressed as alternatives to the first and third charges) of using a false instrument together with obtaining services by deception contrary to the Forgery and Counterfeiting Act 1981 and the Theft Act 1968.   21.   The Convening Officer was the Air Officer Commanding No. 2 Group, Royal Air Force, Rheindahlen and as such was the senior commander of all air force personnel serving in Germany (including approximately 1000 officers). On 26 January 1994 the Convening Officer convened a district court-martial, appointing all members of the court-martial by name. The members of the court-martial were as follows:   -     The President was a Wing Commander of the Royal Air Force      Station, Uxbridge. He was a permanent president and subordinate      in rank to the Convening Officer.   -     Member 2 was a Squadron Leader of the Royal Air Force Station,      Laarbruch. He was stationed in Germany, was subordinate in rank      to, and within the chain of command of, the Convening Officer.   -     Member 3 was a Flight Lieutenant of the Royal Air Force Station,      Gatow. He was also stationed in Germany, was subordinate in rank      to, and within the chain of command of, the Convening Officer.   22.   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.   23.   The court-martial took place at the Royal Air Force Station, Brüggen on 26-28 January 1994. The applicant was found not guilty of the first and second charge, guilty of the third charge (under the Forgery and Counterfeiting Act 1981) and consequently no finding was made on the fourth charge. He was sentenced to nine months detention, dismissal from the air force and to be reduced to the ranks. 24.   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 7 March 1994 the applicant's conviction and sentence were confirmed by the Confirming Officer who had obtained the advice of a Judge Advocate (not the trial Judge Advocate).   25.   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.   26.   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.   27.   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                               General   28.   The law and procedures in respect of courts-martial 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.   29.   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. Though the German and United Kingdom authorities have concurrent jurisdiction in such matters, in practice the German authorities waive jurisdiction.   30.   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. There is no such thing as a standing court-martial; each court-martial is created for a particular trial. 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).   31.   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 who are detailed full-time to preside over courts-martial. In a district court-martial the President is normally superior in rank to the other members of that court-martial. 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 may also be assigned to a district court-martial, though not as a member.   32.   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."                        The Convening Officer   33.   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.   34.   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.   35.   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 Judge Advocate has been appointed. In this latter respect, if the Judge Advocate General does not assign a Judge Advocate to a district court- martial, a Judge Advocate may be assigned by the Convening Officer himself (though the exercise of this latter power is unusual). 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. The Prosecuting Officer is invariably chosen from the staff of the Directorate of Legal Services (Air Force), will be a barrister or solicitor and is answerable to the Director of Legal Services (Air Force).   36.   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, the Prosecuting Officer and to the Judge Advocate. He also sends a summary abstract of the evidence to the Prosecuting Officer and to the Judge Advocate 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 normally takes advice from the Directorate of Legal Services in this latter respect.   37.   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. 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. At least 24 hours before the trial the Convening Officer must send the accused a copy of, inter alia, the convening order, the charge sheet and the abstract of the evidence.   38.   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.             Judge Advocate General and Judge Advocates   39.   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.   40.   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.   41.   A number of assistant and deputy Judge Advocates 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 Judge Advocate does not swear an oath upon appointment and is normally exempted from doing so at an individual court-martial. The Judge Advocate 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 Judge Advocates receive, out of money provided by parliament, such salaries together with travelling and subsistence allowances as the Lord Chancellor may determine.   42.   Once assigned to a court-martial, the Judge Advocate 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 Judge Advocate must be followed. The Judge Advocate is also responsible for advising the court-martial as to any defect in its constitution or in the charge sheet.   43.   At the opening of the trial it is the practice for the Judge Advocate 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 Judge Advocate 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 Judge Advocate sums up the relevant law and evidence. If during the court-martial's deliberations on the charges (at which the Judge Advocate cannot be present) further advice is required then the court- martial must receive that advice in open court. The Judge Advocate can, however, advise the members of the court-martial in private on the general principles governing the approach to sentencing. The Judge Advocate is not a member of the court-martial and has no vote either on the decision on the charges or on the sentence.   44.   Finally, the Judge Advocate must ensure (in conjunction with the President) that the accused does not suffer any disadvantage during the hearing.                      The court-martial hearing   45.   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.   46.   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 Judge Advocate 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.   47.   The members of the court-martial retire (without the Judge Advocate) to deliberate on their findings, return and pronounce those findings. The votes and opinions of the court-martial, including whether there was a majority decision, are private - the members being bound by oath not to disclose such votes and opinions. 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 Judge Advocate) 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.                             Sentencing   48.   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.                Confirmation and post-hearing reviews   49.   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 invariably consults the Judge Advocate General's office for advice but the Judge Advocate 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.   50.   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.   51.   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.                Courts-Martial Appeal Court ("CMAC")   52.   The CMAC was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. 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.   53.   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.   54.   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 opinion is so given 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.   55.   The hearing of the substantive appeal does not constitute a full rehearing on all points of fact and law. However, 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 Judge Advocate and order a reference of any question to a special commissioner for inquiry. The CMAC must exercise all such powers as it thinks necessary or expedient in the interests of justice.   56.   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.   57.   An appellant must have the leave of the CMAC to attend any hearing in relation to the appeal before that court. 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.   58.   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 or of the House of Lords itself.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   59.   The Commission has declared admissible the applicant's complaints that he did not receive a fair hearing before an independent and impartial tribunal established by law.     B.    Point at issue   60.   Accordingly, the point at issue in the present case is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in respect of the applicant's trial by court-martial.     C.    As regards Article 6 para. 1 (Art. 6-1) of the Convention   61.   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   62.   The Commission notes that it is not disputed that the proceedings against the applicant involved the determination of criminal charges against him within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission considers, having regard to the classification of the charges against the applicant in domestic law (the Theft Act 1978 together with the Forgery and Counterfeiting Act 1981), the nature of the offence (obtaining services by deception and using a false instrument) together with the nature and severity of the penalty (including nine months detention), that the proceedings before the court-martial concerned the determination of criminal charges against the applicant within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see, for example, No. 13877/88, Dec. 17.5.90, D.R. 65 p. 279).   2.    Independence and impartiality   63.   The applicant mainly complains that the court-martial did not constitute an independent and impartial tribunal and 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.   64.   As regards the alleged lack of independence, the applicant refers, inter alia, to the rank and wide powers of the Convening Officer. He 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 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 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 air force authorities and the accused's commanding officer, the Convening Officer, the members of the court-martial, the Prosecuting Officer and the Judge Advocate.   65.   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.   66.   The Government emphasise at the outset that a person joining the air force chooses to put himself under a discipline which is different from civilian life and that this discipline is vital to the proper functioning of the air force. Accordingly, a system of military law, which allows for the punishment of military and civilian offences, is also vital since both types of offence can engender indiscipline.   67.   As regards the independence of the court-martial, the Government submit 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, to 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, enhance the independence of the court-martial.   68.   The Government refute as completely unfounded the allegation that the Convening Officer 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 the performance of a member or of the Prosecuting Officer 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.   69.   As regards the subjective impartiality of the members of the court-martial, the Government submit that the applicant's allegations in this respect are speculative and unfounded. In addition, the Government submit 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.   70.   The Commission accepts that the conferring on a military tribunal of jurisdiction to determine criminal charges against a member of the military does not, in principle, conflict with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention. However, those proceedings in their entirety must comply with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Engel and Others judgment of 8 June 1976, Series A no. 22, pp. 33-39, paras. 80-91 and, mutatis mutandis, Albert and Le Compte judgment of 28 May 1983, Series A no. 58, p. 16, para. 29).   71.   As regards the applicant's complaint as to the impartiality of the members of the court-martial, 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 to the contrary (Eur. Court H.R., Padovani judgment of 26 February 1993, Series A no. 257-B, p. 20, paras. 25-26).     72.   In addition, an objective test must also be applied, that is ascertaining whether sufficient guarantees exist to exclude any legitimate doubt in this respect. It must be determined whether there were ascertainable facts, particularly of internal organisation, which might raise doubts as to impartiality. In this respect, even appearances may be important: what is at stake is the confidence which the court must inspire in the accused in criminal proceedings and what is decisive is whether the applicant's fear as to a lack of impartiality can be regarded as objectively justifiable (Eur. Court H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 14, para. 26 and Padovani judgment, loc. cit., p. 20, paras. 25 and 27).   73.   In the present case the Commission does not consider that the applicant has shown that the members of the court-martial or the Judge Advocate were personally or subjectively biased against him. As to whether the court-martial satisfies the objective test of impartiality, the Commission recalls that this concept and that of independence are frequently difficult to dissociate (Eur. Court H.R, Holm judgment of 25 November 1993, Series A. no. 279-A, p. 14, para. 30).   74.   Furthermore, the Commission also recalls that in certain cases the link between the concepts of independence and objective impartiality are such that if a tribunal fails to offer the requisite guarantees of independence it will not satisfy the test for objective impartiality (Demicoli v. Malta, Comm. Rep. 15.3.90, para. 42, Eur. Court H.R., Series A no. 210, p. 27). The Commission considers that such a link exists in the present case concerned as it is with the structure and internal organisation of a court-martial.   75.   The Commission recalls the established criteria to which the Court has regard in assessing the independence of tribunals, in particular from the parties. These include, the manner of appointment of members, the duration of their terms of office, the guarantees afforded by the procedure against outside pressures and whether the body presents an appearance of independence (see, for example, Eur. Court H.R. Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 24, para. 55 and Campbell and Fell judgment of 28 June 1984, Series A no. 80, para. 78, p. 39-40).   76.    Finally, the Commission recalls that, in applying the above principles of assessment to a general army court-martial in the United Kingdom, the Commission found that the Convening Officer was seen to be central to the prosecution of a case and that the applicant's fears, that the court-martial lacked independence from the prosecuting authority, could be regarded as objectively justified. In so finding, the Commission had particular regard to certain structural and organisational matters including the nature and extent of the Convening Officer's roles, the composition of the court-martial, its ad hoc nature and the limited role of the Judge Advocate. In that case, the Commission concluded that the court-martial did not constitute an independent tribunal, or consequently an impartial tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (No. 22107/93, Findlay v. the United Kingdom, Comm. Report 5.9.95, unpublished).   77.   The Commission notes that there are certain differences between the system of an air force district court-martial in issue in the present case and that of an army general court-martial which was examined by the Commission in the Findlay case. The minimum number of members of a district court-martial is three whereas a general court martial has a minimum of five members. The appointment of a Judge Advocate is not obligatory in a district court-martial whereas it is so in a general court-martial, although the Commission observes that a Judge Advocate was in fact appointed to the district court-martial in the present case. Finally, the titles of the personnel involved in army and air force courts-martial will obviously differ, though the ranks of the members of the two forms of court-martial are not materially different. The Commission does not consider that such matters amount to a real structural or organisational difference between the court-martial procedure at issue in the above-mentioned Findlay application and that at issue in the present application.   78.   Equally, there exists no factual feature of the court-martial in the present case which would, in the Commission's view, distinguish it from that which was examined in the Findlay case. In particular, the Commission notes that similar links existed in this case between the members of the court-martial and the Convening Officer as in the Findlay application, which links would appear to be inherent in the very structure of the court-martial system. All members of the court- martial were air force personnel and were appointed by name by the Convening Officer. All were stationed in Germany and were subordinate in rank to the Convening Officer who was the senior commander of all personnel serving in Germany. The two members, other than the president of the court-martial, were within the chain of command of the Convening Officer. The Commission also notes that, although there is no evidence in this case that the Convening Officer and the Confirming Officer were the same person, as in the Findlay application the Confirming Officer could effectively annul the decision of the court-martial in that the court-martial findings and sentence have no effect until confirmation by the Confirming Officer, which confirmation can be withheld.   79.   Accordingly and for the same reasons as outlined in the Findlay application, the Commission considers that the Convening Officer is seen to be central to the prosecution of the applicant's case and that the applicant's fears that the court-martial lacked independence from the prosecuting authority could be regarded as objectively justified. Therefore, the Commission finds that the court-martial did not constitute an independent tribunal, or consequently an impartial tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   80.   The Commission is further of the opinion that since the court- martial has been found to lack independence and impartiality, it could not guarantee a fair trial to the applicant (cf. Mitap and Müftüoglu v. Turkey, Comm. Report 8.12.94, para. 109).   81.   The question arises wh