CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 29374/95                       by Derek DONNELLY                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 29 September 1995 by Derek DONNELLY against the United Kingdom and registered on 24 November 1995 under file No. 29374/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the statement by the respondent Government in their letter dated      26 February 1997 that they had no observations to make on the      admissibility of the application;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in 1961 and resident in Gateshead. He is represented before the Commission by Pearson Caulfield, a firm of solicitors practising in Newcastle Upon Tyne. The facts as submitted by the applicant, upon which the Government have not commented, may be summarised as follows.   A.    Particular circumstances of the case        In early January 1993 the applicant was interviewed by the military police in relation to an alleged incident which occurred around midnight on 30/31 October 1992. By charge sheet dated 5 April 1993 the applicant, then a non-commissioned officer in the army, was charged (pursuant to section 70(1) of the Army Act 1955) with assault occasioning actual bodily harm or, in the alternative, with common assault contrary to the Offences Against The Person Act 1861 and the Criminal Justice Act 1988, respectively.        The Convening Officer, by order dated 1 October 1993, convened a district court-martial to try the applicant on the charges. The applicant was represented by a civilian solicitor and an army officer. The applicant was found guilty of assault occasioning actual bodily harm by the court-martial on 21 December 1993 and was sentenced to six months detention, to be dismissed from the army and to be reduced to the ranks.        The applicant petitioned the Confirming Officer in relation to conviction and sentence. That officer confirmed both conviction and sentence and his conviction and sentence were promulgated on 19 January 1994. By letter dated 9 May 1994 the applicant's representatives were informed of the decision, taken by the Army Board, to reject the applicant's subsequent petition to the Defence Council.        On 22 February 1995 the application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court was rejected by a single judge of that court. The single judge indicated that he had considered the proceedings and grounds presented by the applicant but had concluded that there was no substance in the applicant's complaints. On 2 May 1995 the renewed application for leave to appeal against conviction and sentence to the full Courts-Martial Appeal Court was rejected by that court, that court handing down a detailed judgment in this respect.   B.    Relevant domestic law and practice        The principal law and procedures applicable are contained in the Army Act 1955 ("the 1955 Act") prior to its amendment by the Armed Forces Act 1996 ("the 1996 Act"), which latter Act came into force on 1 April 1997. Accordingly, and apart from section (g) below, the following is an outline of the pre-1996 Act law and practice.   (a)   General        Many civilian offences were also offences under the 1955 Act (section 70(1)). Although the final decision on jurisdiction lay with the civilian authorities, army personnel who were accused of such offences were usually tried by the army authorities unless, for example, civilians had been in some way involved.        Depending on their gravity, charges under the 1955 Act could be tried by district, field or general court-martial. These were not standing courts: they came into existence in order to try a single offence or group of offences.        At the time of the events in question, a district court-martial consisted of a President, who could not be under the rank of Field Officer and was appointed by name by the Convening Officer, and at least two other officers, appointed either by name by the Convening Officer or, at the latter's request, by their commanding officer.        Each member of the court-martial had to 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."   (b)   The Convening Officer        Before the coming into force of the 1996 Act, the Convening Officer of a district court-martial had to be a "qualified officer" or an officer not below the rank of Colonel to whom the qualified officer had delegated his or her powers. To be a "qualified officer", an officer had to be not below the rank of Field Officer or corresponding rank and in command of a body of the regular forces or of the command within which the person to be tried was serving.        The Convening Officer assumed responsibility for every case to be tried by court-martial. He would decide upon the nature and detail of the charges to be brought and was responsible for convening the court-martial.        He would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the President and the details of the other members, all of whom he could appoint. He ensured that a judge advocate was appointed by the Judge Advocate General's Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.        Prior to the hearing, the Convening Officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the Convening Officer's consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and he was responsible for ordering the attendance at the hearing of all witnesses "reasonably requested" by the defence.        The Convening Officer could dissolve the court-martial 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 usually also acted as Confirming Officer.   (c)   The Judge Advocate General and judge advocates        The Judge Advocate General at the time of the events in question was appointed by the Queen in February 1991 for five years. He was answerable to the Queen and removable from office by her for inability or misbehaviour. He had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on army law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court- martial.        Judge advocates are appointed to the Judge Advocate General's Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister.        At the time of the events in question, a judge advocate was appointed to each court-martial, either by the Judge Advocate General's Office or by the Convening Officer. He was responsible for advising the court-martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the President, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. At the close of the hearing, the judge advocate would sum up the relevant law and evidence.        Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court-martial's deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court-martial and had no vote in the decision on conviction or sentence.   (d)   The court-martial hearing        At the commencement of the trial, the accused could object to individual members of the court-martial, such objection being considered in closed court.        The accused was then asked to plead in respect of the charge. If a plea of not guilty was entered the procedure was similar to that followed in the (civilian) Crown Court. After the prosecution had made its case, the defence could enter a submission of no case to answer. If this submission was not accepted, the judge advocate would advise the accused on the alternatives open to him and the defence would proceed with its case. Witnesses could be called for the prosecution and the defence and both sides could make a closing submission, the defence submission being the last. During the trial the court-martial could adjourn to consult the Convening Officer on points of law; the latter then had to take legal advice from the Judge Advocate General. The members of the court-martial retired (without the judge advocate) to deliberate on their findings, returned and pronounced those findings. Their votes and opinions were private and it was not disclosed whether the decision had been by a majority. In the event of a conviction or a plea of guilty, the prosecuting officer put in evidence the defendant's service record and other evidence having a bearing on the sentence to be imposed. The defence made a plea in mitigation and could call witnesses in support. The members of the court-martial then retired (this time with the judge advocate) to consider the sentence.        The sentence was announced in open court. There was no provision for the giving of reasons by the court-martial for its decision on guilt or sentence.   (e)   Confirmation and post-hearing reviews        Until the amendments introduced by the 1996 Act, the findings of a court-martial were not effective until confirmed by a "Confirming Officer". Prior to confirmation, the Confirming Officer used to seek the advice of the Judge Advocate General's Office, where a judge advocate different from the one who acted at the hearing would be appointed. The Confirming Officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence.        Once the sentence had been confirmed, the defendant could present a petition of appeal against conviction and/or sentence to the "reviewing authority", which was usually the Army Board in cases involving army personnel. It had 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. A petitioner was not informed of the identity of the Confirming Officer or of the reviewing authority. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General's Office nor the nature of that advice was disclosed.   (f)   Courts-Martial Appeal Court        The Courts-Martial Appeal Court ("CMAC") was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts- Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the (civilian) Court of Appeal, Criminal Division. Its judges included ordinary and ex officio judges of the Court of Appeal and judges of the High Court nominated by the Lord Chief Justice.        If an appeal petition was rejected by the Army Board an appellant could apply to a single judge of the CMAC (and, if necessary, also to the full court) for leave to appeal against conviction. There was no provision for an appeal against sentence only, although certain powers of revising sentences, pursuant to an appeal against conviction, were available to the CMAC.        The hearing of the substantive appeal did not constitute a full rehearing on all points of fact and law. However, the CMAC was empowered to consider any question required for the doing of justice and could order a retrial. It also had 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 had to allow an appeal against conviction if it considered that the finding of the court-martial was, in all the circumstances, unsafe or unsatisfactory or involved a wrong decision on a question of law. The appeal had also to be allowed if there was a material irregularity in the course of the trial. In any other case, the appeal had to be dismissed. An appellant required the leave of the CMAC to attend any hearing in relation to the appeal. Leave would only be granted where the CMAC considered that his presence would serve some useful purpose or was necessary in the interests of justice. Legal aid for an appeal to the CMAC was available under certain conditions and the appellant could obtain an order for costs in his favour if his appeal was allowed.        A further appeal, on a point of law of general public importance, could be made to the House of Lords with the leave of the CMAC or of the House of Lords itself.   (g)   The Armed Forces Act 1996        Under the 1996 Act, the role of the Convening Officer ceases to exist and its functions are split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I to the 1996 Act).        The higher authority, a senior officer, decides whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case. The prosecuting authority is the legal branch of the relevant Service. Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria to those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. It also conducts the prosecution (the 1996 Act, Schedule I, Part II).        Under the new legislation, court administration officers have been appointed in each Service. They are independent of both the higher and the prosecuting authorities and are responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required are available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court-martial (the 1996 Act, Schedule I, Part III).        Each court-martial now includes a judge advocate as a member. His advice on points of law is binding on the court and he has a vote on sentence (but not on conviction). The casting vote, if needed, rests with the president of the court-martial, who gives reasons for the sentence in open court. The Judge Advocate General no longer provides general legal advice to the Secretary of State for Defence (the 1996 Act, Schedule I, Part III).        Findings by a court-martial are no longer subject to confirmation or revision by a Confirming Officer (whose role is abolished). A reviewing authority has been established in each Service to conduct a single review of each case. Reasons are now given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court-martial) is disclosed to the accused. A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (the 1996 Act, section 17 and Schedule V).     COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that he was denied a fair and public hearing by an independent and impartial tribunal.        In these respects, he points out, inter alia, that he was not given the option of a trial in a civil court; that the father of the alleged victim was an officer in the air force; that the President of the court-martial convinced the other members of the court-martial of his guilt; that the evidence against him was insufficient and his sentence was excessive; that the court-martial failed to have due regard to the provocation of the applicant by the alleged victim; that the Army Board failed to give proper consideration to his petition; that he could not appeal against sentence alone to the Courts-Martial Appeal Court; that his legal representation was ineffective; and that he lost the possibility of voluntary redundancy after his court- martial.        In addition, he complains about the manner in which the defending officer is appointed, invoking Article 6 para. 3 of the Convention.   2.    He also complains about the length of the court-martial proceedings.   3.    Finally, he complains under Article 5 para. 4 of the Convention that he could not have his sentence reviewed by the civilian courts because there is no right to appeal against sentence only to the Courts-Martial Appeal Court.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 September 1995 and was registered on 24 November 1995.        On 27 November 1996 the Commission decided to communicate the application and request the parties observations on the admissibility and merits of the applicant's complaints relating to the independence, impartiality and fairness aspects of Article 6 para. 1 of the Convention. By letter dated 26 February 1997 the Government stated that they had no observations on the admissibility of the application.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) that he did not have a fair hearing by an independent and impartial tribunal. In addition, he complains about the manner in which the defending officer was appointed and he invokes Article 6 para. 3 (Art. 6-3) of the Convention. Article 6 (Art. 6) 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 ...        3. Everyone charged with a criminal offence has the following      minimum rights: ...              c. to defend himself in person or through legal assistance            of his own choosing or, if he has not sufficient means to            pay for legal assistance, to be given it free when the            interests of justice so require; ..."        The Government have no observations as regards the admissibility of the applicant's complaints.        The Commission would first note the applicant's submission relating to his inability to claim voluntary redundancy after the court-martial proceedings. Since this is a matter which relates to the damage to the applicant as a result of the court-martial proceedings against him, the Commission notes that this submission falls to be considered, if at all, in the context of Article 50 or Article 32 para. 2 (Art. 50, 32-2) of the Convention.        As to the independence and impartiality of the court-martial, the Commission recalls the judgments of the Court in the Findlay and Coyne cases (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, no. 30 and Coyne v. the United Kingdom judgment of 24 September 1997, to be published in Reports 1997-V, no. 49). The Court in those cases found that an army general court-martial and an air force district court-martial, respectively did not constitute independent or impartial tribunals. The Commission notes that, in the present case, a district army court- martial was convened pursuant to the Army Act 1955 to try the applicant and that he was found guilty of the civilian criminal offence of assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861.        As to the fairness of the proceedings, the Commission also recalls its finding in its Report in the Findlay case that a court- martial found to lack independence and impartiality could not guarantee a fair trial (Eur. Court HR, Findlay v. the United Kingdom judgment, loc. cit., Comm. Report, para. 108).        The Commission further recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the general concept of fairness guaranteed by paragraph 1 of this Article (see, for example, Eur. Court HR, Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, and in the circumstances of the present case, the Commission will consider the applicant's complaint under Article 6 para. 3 (Art. 6-3) as regards the manner of appointment of his defending officer in the context of its consideration of the fairness aspect of Article 6 para. 1 (Art. 6-1) of the Convention.        In such circumstances, the Commission considers that the applicant's complaints as regards the independence and impartiality of the court-martial and as regards the fairness of the court-martial proceedings raise complex and serious issues under Article 6 para. 1 (Art. 6-1) of the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring the complaints inadmissible has been established.   2.    The applicant also complains about the length of the court- martial proceedings and the Commission has considered this complaint under the "reasonable time" requirement of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes the nature of the charge of which the applicant was convicted (assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861) and the sentence imposed, which included six months detention. Accordingly, the Commission considers that the proceedings involved the determination of a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that Article 6 applies to the applicant's complaint as regards the length of the court-martial proceedings (Eur. Court HR, Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports 1997-V, no. 49, paras. 32-33, with further references).        The Commission considers that the proceedings can be taken to have begun in early January 1993 when the applicant was first questioned by the military police, this being the date on which, on the basis of the facts as submitted, the applicant's situation was substantially affected by the proceedings against him (Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24, para. 46). It further considers that those proceedings ended with the denial of leave to appeal by the full Courts-Martial Appeal Court on 2 May 1995. Accordingly, the proceedings lasted approximately 2 years and four months.        The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27. para. 60).        The Commission considers that the applicant has submitted relatively little detail as regards the conduct of the proceedings. The Commission notes that the applicant's court-martial did not take place until almost a year after he was interviewed by the military police (January 1993). However, the Commission observes that during this period the charges against the applicant were investigated, the applicant was charged in April 1993, the court-martial was convened in October 1993 and that court-martial took place in December 1993. Although there was a three and a half month delay between the promulgation of the conviction and sentence (19 January 1994) and the Army Board's decision (9 May 1994), the applicant does not indicate when he lodged his petition to the latter body. Similarly, and while the single judge did not subsequently hand down his decision until February 1995, the applicant has not indicated when he made the relevant application and, in any event, one of his requests before the single judge was for an extension of time to make his leave to appeal application. As for the proceedings before the Courts-Martial Appeal Court, that court handed down a detailed judgment within two and half months (2 May 1995) of the decision of the single judge.        Having regard to all the circumstances, to the overall length of the proceedings and to the two petitions and two applications for leave to appeal, all of which were considered subsequent to the court-martial itself, the Commission considers that the applicant has not demonstrated that the proceedings as a whole exceeded the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention.        Accordingly, the Commission considers that this complaint of the applicant is manifestly ill-founded and inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further complains that, since the Courts-Martial Appeal Court could not consider an appeal against sentence alone, he had no right to have his sentence reviewed by a court outside of the military system. He invokes Article 5 para. 4 (Art. 5-4) of the Convention.        Having regard to the fixed nature of the applicant's sentence (namely, that it is not subject to change with the passage of time), the guarantees of Article 5 para. 4 (Art. 5-4) were satisfied by the original trial and subsequent proceedings and that Article confers no additional right to challenge the lawfulness of the continuing detention (see, for example, Eur. Court HR, Wynne v. the United Kingdom judgment of 18 July 1994, Series A no. 294-A, p. 12 para. 36). Insofar as the applicant submits that those original proceedings did not comply with the Convention, this matter has been considered above in relation to the complaint under 6 para. 1 of the Convention.        Accordingly, the Commission finds the complaint of the applicant under Article 5 para. 4 (Art. 5-4) of the Convention to be inadmissible as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints in relation to the independence and      impartiality of the court-martial and in respect of the fairness      of the court-martial proceedings; and        DECLARES INADMISSIBLE the remainder of the application.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ           Secretary                                  President      to the First Chamber                       of the First Chamber