EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 35095/97

Peter Alexander Ainsworth

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 25 October 1999)

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. 16-25) 3

A. The particular circumstances of the case

(paras. 16-17) 3

B. Relevant domestic law

(paras. 18-25) 3

III. OPINION OF THE COMMISSION

(paras. 26-45) 5

A. Complaints declared admissible

(para. 26) 5

B. Points at issue

(para. 27) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 28-39) 5

(a) Applicability of Article 6 para. 1 of the Convention

(para. 29) 5

(b) Independence and impartiality of the applicant’s court-martial

(paras. 30-35) 5

CONCLUSION

(para. 36) 7

(c) Remaining points at issue under Article 6 para. 1

(paras. 37-38) 7

CONCLUSION

(para. 39) 7

D. As regards Article 6 para. 2 of the Convention

(paras. 40-41) 7

CONCLUSION

(para. 42) 7

E. Recapitulation

(paras. 43-45) 7

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 9

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 1966 and resident in Cumbria . He was represented before the Commission by Mr Patrick Langrishe , a solicitor practising in Exeter.

3.  The application is directed against the United Kingdom. The respondent Government were represented by Mr Martin Eaton, Agent, Foreign and Commonwealth Office.

4.  The case mainly concerns the applicant’s complaint under Article 6 para. 1 of the Convention that he did not receive a fair and public hearing by an independent and impartial tribunal established by law and his complaint that he was presumed guilty throughout the court-martial hearing contrary to Article 6 para. 2 of the Convention.

B. The proceedings

5.  The application was introduced on 18 July 1996 and registered on 26 February 1997.

6.  On 3 December 1997 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 on the case were submitted on 1 May 1998 after one extension of the time-limit fixed for that purpose and the applicant’s observations in reply were submitted on 24 August 1998 also after one extension of the time-limit.

8.  On 22 October 1998 the Commission declared admissible the applicant’s complaints under Article 6 para. 1 of the Convention that he did not receive a fair and public hearing by an independent and impartial tribunal established by law. His complaint that he was presumed guilty contrary to Article 6 para. 2 was also declared admissible. The Commission declared inadmissible the remainder of the application.

9.  The text of the Commission's decision on admissibility was sent to the parties on 30 October 1998 and the parties were invited to submit such further information or observations on the merits as they wished. No such observations were received. Pursuant to entry into force of Protocol No. 11 to the Convention on 1 November 1998, the applications were transferred to the Commission sitting in plenary.

10.  After declaring the case admissible, the Commission, acting in accordance with former (1) 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 case. In the light of the parties' reaction, the Commission now finds that there is no basis on which such settlements can be effected.

C. The present Report

11.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12.  The Commission adopted the text of this Report on 25 October 1999 and it is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13.  The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

------------------------

1 The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998

(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.  At the time of the events in question, the applicant was serving in the Royal Marines and was tried by general court-martial convened pursuant to the Army Act 1955 (“the 1955 Act”).

17.  The applicant was found guilty of two counts of conduct to the prejudice of good order and military discipline contrary to section 69 of the 1955 Act. The charges related to the applicant’s supervision of the alcohol intake of a group of underage recruits, one of whom died from an excessive intake of alcohol. He was sentenced to be dismissed from service, although the maximum penalty under section 69 was two years’ imprisonment (see paragraph 25 below). His subsequent petitions and appeals, as far as the full Courts-Martial Appeal Court, were unsuccessful.

B. Relevant domestic law

18.  The relevant provisions of the Army Act 1955 are set out in the judgment of the Court in the Findlay case (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, pp. 272-75, paras. 32-51).

19.  Central to the system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.

20.  The convening officer 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. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.

21.  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 was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence .

22.  The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.

23.  The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.

24.  Since the applicant’s trial, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, p. 276, paras. 52-57).

25.  A person convicted of conduct to the prejudice of good order and military discipline shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided for by the 1955 Act.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

26.  The Commission has declared admissible the applicant’s complaints that, in respect of the court-martial proceedings against him:

- he did not have a fair hearing by an independent and impartial tribunal;

- he did not have a “public” hearing by a tribunal “established by law”; and

- he was presumed guilty.

B. Points at issue

27.  Accordingly, the points at issue in the present case are:

- whether the applicant was given a fair hearing before an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention;

- whether the proceedings in other specific respects complied with the requirement of fairness in Article 6 para. 1 of the Convention and whether the applicant was afforded a “public” hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention; and

- whether the applicant was presumed innocent during his court-martial within the meaning of Article 6 para. 2 of the Convention.

C. As regards Article 6 para. 1 of the Convention

28.  Article 6 para. 1, 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 … by an independent and impartial tribunal established by law.”…

(a) Applicability of Article 6 para. 1 of the Convention

29.  The Commission notes the potential penalty of two years’ imprisonment for the charges of which the applicant was found guilty together with the nature of those charges. It considers that the applicant’s court-martial proceedings involved the determination of charges of a criminal nature within the meaning of Article 6 para. 1 of the Convention (see, for example, Eur. Court HR, Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports 1997-V, no. 49, p. 1830, paras. 32-33, with further references).

(b) Independence and impartiality of the applicant’s court-martial

30.  The applicant mainly argues under Article 6 para. 1 of the Convention that his court-martial was not independent and impartial and that the proceedings against him were consequently unfair. The Government made no observations on the admissibility of these aspects of the case except to note that they raise issues similar to those in respect of which the Court found a violation of Article 6 para. 1 in the above-cited Findlay case and in the Coyne case ( Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, pp. 1848-52, paras. 20-44). Having reserved their position on the merits, the Government did not submit any further observations in these cases.

31.  The Commission recalls that, in the above mentioned Findlay judgment, the Court found that a general court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality set down by Article 6 para. 1 of the Convention in view, in particular, of the central part played in its organisation by the convening officer. In this latter respect, the Court considered that the convening officer was central to the applicant's prosecution and was closely linked to the prosecution authorities; the Court expressed some concern that the members of the court-martial were subordinate (either directly or indirectly) to the convening officer; and the Court found it significant that the convening officer also acted as confirming officer.

32.  The Court subsequently found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (the above-mentioned Coyne v. the United Kingdom judgment). In particular, it considered that there were no significant differences between the part played by the convening officer in Mr Coyne's court-martial, under the Air Force Act 1955, and in that of Mr Findlay, under the Army Act 1955. While an appeal to the Courts-Martial Appeal Court was open to Mr Coyne , the Court concluded that the organisational defects in the court-martial could not be corrected by any subsequent review procedure because an accused faced with a serious criminal charge is entitled to a first instance tribunal which meets the requirements of Article 6 para. 1 of the Convention. In addition, the Court has also found a violation of Article 6 para. 1 on the same basis in a series of cases involving complaints about the independence and impartiality of army and air force district and general courts-martial convened pursuant to the Army and Air Force Acts 1955 (Eur. Court HR, Cable and Others v. the United Kingdom judgment of 18 February 1999, Reports 1999).

33.  The Commission recalls that in the present case a general army court-martial was convened pursuant to the Army Act 1955 to try the applicant. It can find no reason to distinguish the present case from those of Mr Findlay, of Mr Coyne or of Mr Cable and Others as regards the part played by the convening officer in the organisation of their courts-martial. Accordingly, the Commission considers that the applicant’s court-martial did not meet the independence and impartiality requirements of Article 6 para. 1 of the Convention. The Commission also considers that, since the applicant was faced with, inter alia , charges of a serious and criminal nature and was therefore entitled to a first instance tribunal complying with the requirements of Article 6 para. 1, such organisational defects in his court-martial could not be corrected by any subsequent review procedure.

34.  Accordingly, and for the reasons expressed in detail in the above-cited judgment of the Court in Mr Findlay's case, the Commission concludes that the court-martial which dealt with the applicant’s case was not independent and impartial within the meaning of Article 6 para. 1 of the Convention.

35.  The Commission is further of the opinion that, since the applicant’s court-martial has been found to lack independence and impartiality, it could not guarantee the applicant a fair trial (Findlay v. the United Kingdom judgment, loc. cit., Comm. Report, at para. 108).

CONCLUSION

36.  The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention in that the applicant was not given a fair hearing by an independent and impartial tribunal.

(c) Remaining points at issue under Article 6 para. 1

37.  The applicant also makes specific complaints about the unfairness of the court-martial proceedings on the grounds, inter alia , that there was no appeal against sentence only to the Courts-Martial Appeal Court, that the sentence he received was too severe, that the Judge Advocate's summing up was lacking and that the court-martial failed to establish a necessary element of the offence under section 69 of the 1955 Act. The applicant further complains that his court-martial was not “public” or “established by law” within the meaning of Article 6 para. 1 of the Convention.

38.  In view of its conclusion at paragraph 36 above, the Commission finds that, in the present cases, it is unnecessary also to examine these complaints of the applicant.

CONCLUSION

39.  The Commission concludes, unanimously, that in the present case it is not necessary also to examine the applicant’s complaints that the court-martial proceedings were, in other specific respects, unfair and that he was not afforded a “public” hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention.

D. As regards Article 6 para. 2 of the Convention

40.  Article 6 para. 2 of the Convention reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

41.  The applicant submits that he was presumed guilty throughout his court-martial in violation of Article 6 para. 2 and the Government deny this allegation. The Commission, having regard to its conclusion at paragraph 36 above and the particular circumstances of the case, does not consider that it is necessary also to examine this complaint of the applicant.

CONCLUSION

42.  The Commission concludes, unanimously, that in the present case it is not necessary also to examine the applicant’s complaint under Article 6 para. 2 that he was presumed guilty during his court-martial.

E. Recapitulation

43.  The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention in that the applicant was not given a fair hearing by an independent and impartial tribunal (para. 36 above).

44.  The Commission concludes, unanimously, that in the present case it is not necessary also to examine the applicant’s complaints that the court-martial proceedings were, in other specific respects, unfair and that he was not afforded a “public” hearing by a tribunal “established by law” within the meaning of Article 6 para. 1 of the Convention (para. 39 above).

45.  The Commission concludes, unanimously, that in the present case it is not necessary also to examine the applicant’s complaint under Article 6 para. 2 that he was presumed guilty during his court-martial (para. 42 above).

M.-T. SCHOEPFER S. TRECHSEL

        Secretary                 President

to the Commission       of the Commission