CEDH · PRESS;GENERAL;ENG — 16 décembre 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sE1FBB432 { margin-top:0pt; margin-left:3pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sD711EC90 { margin-left:31.52pt; padding-left:7.48pt; font-family:serif } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS 645 16.12.2003   Press release issued by the Registrar   GRAND CHAMBER JUDGMENTS IN THE CASES OF COOPER v. THE UNITED KINGDOM AND GRIEVES v. THE UNITED KINGDOM   The European Court of Human Rights has today delivered two judgments at a public hearing in the Human Rights Building, Strasbourg, in the cases of Cooper v. the United Kingdom (application no. 48843/99) and Grieves v. the United Kingdom (application no. 57067/00). (The judgments are available in English and French.)   In Cooper v. the United Kingdom , the Court held unanimously that there had been: no violation of Article 6 § 1 (right to a fair hearing and to an independent and impartial tribunal) of the European Convention on Human Rights.   In Grieves v. the United Kingdom the Court held unanimously that there had been: a violation of Article 6 § 1 , and Under Article 41 (just satisfaction), the Court awarded the applicant 8,000   euros (EUR) for costs and expenses, less the amount received in legal aid.     1.     Principal facts   The two cases concerned whether trial by court martial in the United Kingdom - under the system in place since the coming into force of the 1996 Armed Forces Act - was compatible with Article 6 § 1 of the Convention.   Cooper Graham Cooper, a United Kingdom national, was born in 1968 and lives in Birmingham. At the relevant time, he was a serving member of the Royal Air Force (RAF).   On 18 February 1998 Mr Cooper was convicted of theft under the 1968 Theft Act by an Air Force district court martial (DCM). He was sentenced to 56 days’ imprisonment, to be reduced to the ranks and dismissed from the service. The DCM comprised a permanent president, two other officers lower in rank and a judge advocate. The permanent president was on his last posting prior to retirement and had ceased to be the subject of appraisal reports from August 1997. The two ordinary members had attended a course in 1993 which included training in disciplinary procedures.   On 3 April 1998 the Reviewing Authority, having received advice from the Judge Advocate General, upheld the DCM’s finding and sentence. The applicant appealed unsuccessfully to the Courts Martial Appeal Court (CMAC).   Grieves Mark Anthony Grieves, a United Kingdom national, was born in 1968 and lives in Devon. At the relevant time, he was a serving member of the Royal Navy. On 18 June 1998 Mr Grieves was convicted by a Royal Navy Court Martial of unlawfully and maliciously wounding with intent to do grievous bodily harm, contrary to the Offences Against the Person Act 1861. He was sentenced to three years’ imprisonment, reduced in rank, dismissed from the service and ordered to pay 700 pounds sterling in compensation. The court martial comprised a president (a Royal Navy captain), four naval officers and a judge advocate, who was a serving naval officer and barrister working as the naval legal advisor to FLEET (the command responsible for the organisation and deployment of all ships at sea).   On 29 September 1998 the Admiralty Board, having received advice from the Judge Advocate of the Fleet (JAF), upheld the court martial’s finding and sentence. The applicant appealed unsuccessfully to the CMAC.     2.     Procedure and composition of the Court   Cooper v. the United Kingdom and Grieves v. the United Kingdom were lodged with the European Court of Human Rights respectively on 8 June 1999 and 26 April 2000. On 6 May 2003 the Chamber of the Court dealing with the cases relinquished jurisdiction in favour of the Grand Chamber. A hearing on admissibility and the merits was held on 1 October 2003.   In both cases, judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Nicolas Bratza (British), Viera Strážnická (Slovakian), Corneliu Bîrsan (Romanian) Karel Jungwiert (Czech) , Marc Fischbach (Luxemburger) , Josep Casadevall (Andorran) , John Hedigan (Irish) , Margarita Tsatsa-Nikolovska (Macedonian) , Rait Maruste (Estonian) , Anatoli Kovler (Russian) , Stanislav Pavlovschi (Moldovan) , Lech Garlicki (Polish), Javier Borrego Borrego (Spanish), judges , and also Paul Mahoney , Registrar .             3.     Summary of the judgment [1]   Complaint   Both applicants complained that the courts martial which tried them, structured as they were under the 1996 Act, lacked independence and impartiality and that they were therefore denied a fair and public hearing by an independent and impartial tribunal established by law. They relied on Article 6 § 1.   Decision of the Court   Article 6 § 1   Admissibility The Court considered that, given the nature of the charges against the applicants, together with the nature and severity of the penalty imposed (56 days and three years’ imprisonment respectively in each case), the court martial proceedings constituted the determination of a criminal charge against the applicants. Finding that the applicants’ complaints raised questions of law which were sufficiently serious that their determination should depend on an examination of the merits, the Court declared the complaints admissible.   Merits   Cooper   The Court rejected the applicant’s general submission that service tribunals could not, by definition, try criminal charges against service personnel consistently with the independence and impartiality requirements of Article 6 § 1.   The Court also rejected his complaint that his own court martial lacked independence and impartiality. His submissions did not cast any doubt on the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court martial process or the independence of the decision-making bodies from chain of command, rank or other service influence.     The Court stated that there was no ground upon which to question the independence of the Air Force judge advocate since he was a civilian appointed by the Lord Chancellor (a civilian) and he was appointed to a court martial by the Judge Advocate General (also a civilian). It was also found that the presence of a civilian with such qualifications and such a central role in court martial proceedings constituted one of the most significant guarantees of the independence of those proceedings. Furthermore the Permanent President of Courts Martial (PPCM) appointed to the court martial in the case was independent and made an important contribution to the independence of an otherwise ad hoc tribunal.   Turning then to the ordinary members, the Court found that their ad hoc appointment and relatively junior rank did not in themselves undermine their independence, as there were safeguards against outside pressure being brought to bear on them, namely the presence of the PPCM and the judge advocate, the prohibition of reporting on members’ judicial decision-making and the briefing notes distributed to the members.   The Court noted that the Reviewing Authority was an anomalous feature of the present court martial system and expressed its concern about a criminal procedure which empowered a non-judicial authority to interfere with judicial findings. However, the Court found that the role of the Reviewing Authority did not undermine the independence of the court martial, because the final decision in the proceedings would always lie with a judicial body, the CMAC.   Accordingly, the Court concluded that the court martial proceedings could not be said to have been unfair and that there had not, therefore, been a violation of Article 6 § 1.   Grieves The Court noted that Royal Navy courts martial differed in certain important respects from the Air Force system.   In contrast to the other services, the naval prosecuting authority could appoint a prosecutor for a court martial from a list of uniformed naval barristers outside his own staff. However, the prosecutor in the applicant’s case came from the staff of the prosecuting authority, as in the Cooper case. The Naval Court Administration Officer was a civilian, not a serving officer as the Air Force Court Administration Officer.   The involvement of a civilian in a service court martial process plainly contributed to its independence and impartiality.   It was significant that the post of PPCM did not exist in the naval system; the president of a Royal Navy court martial being appointed for each court martial as it was convened. The Court considered that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making, deprived Royal Navy courts martial of an important contribution to the independence of an otherwise ad hoc tribunal.   Most importantly, the Court noted that, although Royal Navy judge advocates fulfilled the same pivotal role in courts martial as their Air Force equivalents, they were serving naval officers, who, when not sitting in a court martial, carried out regular naval duties. The Air Force judge advocate was a civilian working full-time for the Judge Advocate General, himself a civilian.     In addition, Royal Navy judge advocates were appointed by a naval officer, the Chief Naval Judge Advocate (CNJA).   The Court noted with some concern certain reporting practices regarding Royal Navy judge advocates which applied at the relevant time. For example, the JAF’s report on a judge advocate’s judicial performance could be forwarded to the judge advocate’s service reporting officer. The Court considered that, even if the judge advocate appointed to the applicant’s court martial could be seen as independent despite these reporting practices, the position of naval judge advocates could not be considered a strong guarantee of the independence of a Royal Navy court martial. Accordingly, the lack of a civilian in the pivotal role of judge advocate deprived a Royal Navy court martial of one of the most significant guarantees of independence enjoyed by other services’ courts martial.   The Court further considered the briefing notes sent to members of Royal Navy courts martial to be substantially less detailed and significantly less clear than the RAF briefing notes. They were consequently less effective in safeguarding the independence of the ordinary members of courts martial from inappropriate outside influence.   The Court accordingly found that the distinctions between the Air Force court martial system assessed in the Cooper case and the Royal Navy court martial system at issue in the Grieves case were such that Mr Grieves’s misgivings about the independence and impartiality of his court martial, convened under the 1996 Act, could be considered to be objectively justified. His court martial proceedings were consequently unfair and there had, therefore, been a violation of Article 6 § 1.     In the case Cooper Judge Costa expressed a concurring opinion, which is annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] This summary by the Registry does not bind the Court.