EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27347/95

Richard Alan Lane

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

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. 16-53) 3

A. The particular circumstances of the case

(paras. 16-23) 3

B. Relevant domestic law and practice

(paras. 24-53) 4

III. OPINION OF THE COMMISSION

(paras. 54-77) 10

A. Complaints declared admissible

(para. 54) 10

B. Points at issue

(para. 55) 10

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

(paras. 56-71) 10

(a) Applicability of Article 6 para. 1

of the Convention

(para. 58) 10

(b) The independence and impartiality of

the court-martial

(paras. 59-66) 11

CONCLUSION

(para. 67) 12

(c) The remaining points at issue under

Article 6 para. 1

(paras. 68-70) 12

CONCLUSION

D. As regards Article 13 of the Convention

(paras. 72-73) 13

CONCLUSION

(para. 74) 13

E. Recapitulation

(paras. 75-77) 13

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 14

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 1948 and resident in Portsmouth. He was represented before the Commission by Mr John Mackenzie, a solicitor practising in London.

3. The application is directed against the United Kingdom. The respondent Government were represented by their Agents Ms. Dickson and, subsequently, Mr Eaton, both of the Foreign and Commonwealth Office.

4. The case raises issues under Article 6 para. 1 of the Convention and mainly concerns the independence and impartiality of a court-martial which tried a charge against the applicant. He also argues that the court-martial proceedings were unfair and not public and that the court-martial was not "established by law" within the meaning of Article 6 para. 1 of the Convention. He further argues under Article 13 that he had no effective domestic remedy in these respects.

B. The proceedings

5. The application was introduced on 9 May 1995 and registered on 16 May 1995.

6. On 4 September 1996 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 request the parties' observations on the admissibility and merits of the applicant's complaints under Article 6 para. 1 of the Convention.

7. By letter received on 21 November 1996 the Government stated that they did not wish to submit observations on the admissibility of the application and that, should the application be admissible, they would wish to have the opportunity to submit any observations on the merits they considered necessary.

8. On 9 April 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 April 1997 and they were invited to submit such further information or observations on the merits as they wished. No further submissions were made by either party.

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 on which such a settlement can be effected.

C. The present Report

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

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 21 October 1998 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 Navy in 1966 and became a commissioned officer in 1970. In 1982 he served in the Falklands war when the ship upon which he was serving was attacked. The applicant unsuccessfully attempted to save a colleague who later died in the attack.

17. In October 1993 the applicant was serving in the United States and obtained $3,500.00 by way of a grant to which he was not entitled.  An investigation was carried out by the Royal Naval Police and the consequent report was sent to the Flag Officer Surface Flotilla ("FOSF").

18. The applicant's Commanding Officer received two letters in this respect dated 17 June 1994 from FOSF. The first was from Lieutenant Commander Steel and the second was from Commander MacDonald (of the staff of FOSF). Those letters noted that the Deputy Commander, Fleet (Vice Admiral Biggs) had approved the applicant's trial by court-martial, that the applicant would be charged (pursuant to section 42 of the Naval Discipline Act 1957) with theft contrary to the Theft Act 1968 and that he could be represented if he wished by Lieutenant Commander Lewin. Although he had some doubts about being represented by a naval barrister, having taken that barrister's advice, the applicant did not pursue the issue of a civilian defence lawyer.

19. By notice dated 2 November 1994 the Convening Authority (Vice Admiral Tod, Chief of Staff to the Commander in Chief, Fleet) noted receipt of the letter alleging the misconduct of the applicant (the circumstantial letter), ordered the convening of a court-martial for 7 November 1994 and nominated by name the President, the remaining four members of the court-martial, the Judge Advocate and the Clerk of the Court as follows:

- President : Captain Page of the Staff of the Ministry of Defence

- Members : Commander Jellyman, HMS Illustrious

Commander Wellesley-Harding, Royal Naval College, Greenwich

Commander Noble, HMS Fearless

Lieutenant Commander Pattinson, Staff of Second Sea Lord   and Commander-in-Chief Naval Home Command

- Judge Advocate : Captain Bayliss, Chief Naval Judge Advocate

- Clerk : Warrant Officer Coates, Staff of FOSF

20. The Prosecutor was Lieutenant Commander Steel (the legal adviser to FOSF) and the accused's friend was Lieutenant Commander Lewin (the legal adviser to the Flag Officer Naval Aviation  - "FONA"). The Prosecutor and the accused's friend were 2 of 13 Lieutenant Commanders in the Royal Navy Legal Branch of the Naval Supply and Secretariat Branch, where the Chief Naval Judge Advocate was the second in command and where the Prosecutor was the accused's friend's superior. Two of the members of the court-martial served on ships directly under the command of FOSF. FOSF and FONA are under the direct command of the Commander in Chief, Fleet whose Chief of Staff was the Convening Authority.

21. The trial took place on 7 November 1994. The applicant's position, supported by psychiatric evidence, was that the cause of his actions was a "professional suicide impulse" caused by Post Traumatic Stress Disorder. On the advice of his representative, the applicant pleaded guilty and offered evidence in mitigation of sentence. The court-martial retired to consider sentence and ordered a three month suspended sentence and discharge from the navy.

22. On 16 December 1994 the applicant petitioned the Defence Council citing the numerous and uncontradicted witnesses who offered psychiatric and other evidence in mitigation as a basis for a more lenient sentence. By letter dated 31 January 1995 from FOSF and signed on behalf of Vice Admiral Biggs, the applicant was informed that his petition, which had been reviewed by the Naval Secretary and the Director General Naval Manning on behalf of the Admiralty Board, demonstrated no grounds for interfering with the finding or sentence of the court-martial. The petition was to be passed to the Admiralty Board.

23. On 23 March 1995 two members of the Admiralty Board (Controller of the Navy and Chief of Fleet Support) dismissed the petition having taken advice from, inter alia, the Judge Advocate of the Fleet. A letter dated 5 April 1995 to FOSF (and copied to the accused's friend and to the applicant's new legal representative) noted the decision of the Admiralty Board and FOSF was requested to notify the applicant accordingly. That letter was accompanied by a note outlining the points considered by the Admiralty Board and the reasons for their decision.

B. Relevant domestic law and practice

(a) General

24. The law and procedures in respect of naval courts-martial were contained in the Naval Discipline Act 1957 ("the 1957 Act") and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 ("the 1991 Orders"). Since the introduction of the present application certain provisions of the 1957 Act have been amended by the Armed Forces Act 1996 ("the 1996 Act"), which Act came into force on 1 April 1997. Accordingly, and apart from section (h) below, the following is an outline of the pre-1996 Act law and practice.

25. Under section 42 of the 1957 Act "civilian" offences are also offences under the 1957 Act. Accordingly, even if the charge amounts to a civilian offence, in most cases naval personnel can be tried on that charge by the naval authorities under the 1957 Act.

(b) Composition of a naval court-martial

26. A naval court-martial consists of between five and nine naval officers not below the rank of lieutenant, though the rank of the members may be higher depending on the rank of the accused. Not all members may belong to the same ship or naval establishment and the captain and executive officer of the accused's ship cannot sit on the court-martial.

27. A President of the court-martial will be appointed from the members. A Judge Advocate must also take part in every naval court-martial. A Clerk of the Court is also appointed and is responsible for certain administrative and routine duties in connection with the court-martial. A Provost Marshal may be appointed to take the accused into custody and to keep the accused until he is delivered in due course of law. A Prosecutor must be appointed and he may be a legally qualified naval officer or any other competent person. In exceptional cases civilian counsel will be appointed as Prosecutor.

28. An accused may engage, inter alia, an officer or civilian counsel ("the accused's friend") who may advise the accused, examine the accused if he desires to give evidence, cross-examine witnesses for the prosecution and examine witnesses for the defence. The accused's friend may make any submissions that the accused might make and may, on the accused's behalf, open and close the defence case and, if necessary, make a statement in mitigation of punishment. If the accused wishes to be represented by a civilian lawyer he may apply to the Convening Authority for approval of legal aid.

(c) Convening Authority

29. A court-martial may be convened by the Defence Council and any officer authorised by the Defence Council. Any officer so authorised may in turn authorise an officer under his command (including a flag officer) to so convene a court-martial. The officer who convenes the court-martial is referred to as the Convening Authority. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gives a list of officers who may act as a Convening Authority and these are the Commander in Chief, Fleet; Commander in Chief, Naval Home Command; Flag Officer Plymouth; Flag Officer Scotland and Northern Ireland; Flag Officer Naval Aviation; Flag Officer Portsmouth; Flag Officer Surface Flotilla; Flag Officer Sea Training; Commander UK Task Force and Commander British Forces Gibraltar.

30. An application for a court-martial to be held is generally made to the Convening Authority by the Commanding Officer by way of a "circumstantial letter". This letter must report the circumstances upon which a charge is based in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he has been charged must be forwarded in a separate document annexed to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposes to put in evidence must accompany the letter.

31. Based on the material submitted, the Convening Authority decides on the charges to be retained against an accused and, if he is satisfied with the charge sheet accompanying the circumstantial letter, he can countersign the charge sheet. He also decides on the necessity to hold a court-martial to try the accused on the charges so retained. In this latter respect, the Convening Authority should be guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and must not order a court-martial unless satisfied that the charges are correct, that the evidence is sufficient (namely, that there is a realistic prospect of a conviction) and that there is a "service interest" in trying the matter by court-martial. In convening the court-martial, the Convening Authority must appoint the date, time and place for the trial and post notice of the court-martial in a place accessible to the public and press at least twenty-four hours before the court-martial.

32. The Convening Authority appoints the President and other members of the court-martial. He also appoints, or directs an officer to appoint, a Judge Advocate, a Clerk, a Prosecutor and a Provost Marshal, if the latter is deemed necessary. He must also ensure that the accused is properly assisted. In this latter respect, and unless the accused desires to represent himself or to instruct civilian counsel, the Convening Authority will nominate a competent naval officer to act as the accused's friend. The Convening Authority must also inform the accused that any witnesses he may desire to call and whose attendance may be reasonably procured, will be summoned on his behalf.

33. The Convening Authority can, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arise which, in his opinion, render such action necessary (orders 13(2) and 28(2) of the 1991 Orders).

(d) Judge Advocates

34. The Judge Advocate of the Fleet is appointed by the Queen on the recommendation of the Lord Chancellor and is removable on the same authority for inability or misbehaviour. He must be a barrister or advocate of not less than ten years standing. He acts as a legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. In particular, he advises that Board whether a court-martial was properly conducted according to law and whether the conviction can stand, gives a view on the sentence and draws attention to any gross errors or irregularities. He also gives the Chief Naval Judge Advocate his view as to the manner in which the naval barristers have conducted themselves as Judge Advocate, Prosecutor and as the accused's friend.

35. The Chief Naval Judge Advocate is a serving officer of the rank of captain of the Royal Navy and is also a barrister. The Chief Naval Judge Advocate is assisted by a staff of serving naval officers who are barristers. His duties include assisting and consulting with the Judge Advocate of the Fleet and sitting as Judge Advocate at naval courts-martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interest of the Service may so require.

36. In all other cases a Judge Advocate is appointed to a court-martial from the staff of the Chief Naval Judge Advocate.

37. Before the trial the Judge Advocate appointed must inform the Convening Authority of any defect in the constitution of the court-martial. He advises the court-martial, whether his opinion is requested or not, upon all questions of law and procedure which may arise and the court-martial must accept his advice unless there are weighty reasons for rejecting it, in which case those reasons must be recorded.

38. The Judge Advocate must ensure that the accused does not suffer any disadvantage during the hearing in consequence of, inter alia, the accused's position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate sums up the relevant law and evidence. The Judge Advocate is not present when the court considers its finding and, if during the court-martial's deliberations on the charges further advice is required, the court-martial must receive that advice in open court. The Judge Advocate also advises the court-martial on sentence but not in open court.

(e) The court-martial hearing

39. The accused is given an opportunity to object to any particular member of the court-martial and to its general constitution. If the objection to the President is upheld the court must adjourn until another is appointed. If an objection to a member is upheld a member may be appointed from the "spare members list" and, if an objection as to the constitution of the court-martial is upheld, the court-martial must adjourn and report the matter to the Convening Authority. All members of the court, the Judge Advocate, the Clerk and any other officers of the court-martial must take a prescribed oath or affirmation (section 60 of the 1955 Act).

(f) Procedure in the event of a plea of guilty

40. Before the court accepts a plea of guilty, the Judge Advocate must ensure that the accused understands the charge to which he has pleaded and the different procedure which will result from the plea. The Prosecutor then reads the circumstantial letter. Before the court proceeds to deliberation on sentence, the Prosecutor must whenever possible call relevant witness evidence as regards information in the possession of the naval authorities as to the accused's background and history which may have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused may also give evidence and call witnesses in mitigation. The court-martial must also take note of the accused's naval record (for example, awards for gallantry).

41. The members of the court-martial retire (with the Judge Advocate and the Clerk) to consider the sentence. The court-martial does not give reasons for its decision on sentence.

(g) Post-hearing matters

42. Having received the report of the finding and sentence of a court-martial, the Convening Authority must take the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he can order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) points out that before the Convening Authority gives effect to or suspends the sentence, he (or, inter alia, the Commander in Chief) must satisfy himself so far as he is able, that no errors have been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubts the correctness of the finding, in fact or in law, or the legality of the sentence, he cannot execute the sentence pending reference to the Defence Council. In such circumstances, the accused can be retained in custody or the sentence can be suspended under section 90 of the Act.

43. The Convening Authority (among other naval authorities) may at any time, and must at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appears that the conduct of the offender since his conviction has been such as to justify a remission of sentence, it must remit the whole or any part of it (section 92 of the 1957 Act).

44. The Defence Council may at any time review a finding of guilty, any sentence awarded in respect of such a finding by any tribunal and any finding by a court-martial that a person is unfit to stand his trial or is not guilty by reason of insanity, and the Defence Council must do so in the case of a court-martial as soon as practicable after the receipt of the record of proceedings (section 70(1) of the 1957 Act).

45. A convicted person may also petition the Defence Council against the findings or sentence or both (section 70(2) of the 1957 Act). Having reviewed the petition, the Defence Council may, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers may be, and are normally, carried out by the Admiralty Board or by any officer empowered in this respect by the Admiralty Board. Should an appeal be lodged to the Courts-Martial Appeal Court, the review functions of the Defence Council cease. 

46. 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 has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division and considers appeals from courts-martial. 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.

47. There is no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, are available to the CMAC.

(h) The Armed Forces Act 1996

48. Under the 1996 Act, the role of the Convening Authority ceases to exist and its functions are split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I).

49. The higher authority, a senior officer, decides whether any case referred to him by the accused's commanding officer should be tried 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.

50. A prosecuting authority is to be appointed for each 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 (Schedule I, Part II).

51. Court administration officers have also 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 (Schedule I, Part III).

52. Every court-martial should now include 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. (Schedule I, Part III).

53. 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 (Schedule V). A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (section 17 of the 1996 Act).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

54. The Commission has declared admissible the applicant's complaints that he did not have a fair and public hearing by an independent and impartial tribunal established by law and that he had no effective domestic remedy in those respects.

B. Points at issue

55. 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 and whether the applicant was afforded a "public" hearing by a tribunal "established by law" within the meaning of Article 6 para. 1; and

- whether the applicant had an effective domestic remedy in those respects within the meaning of Article 13 of the Convention.

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

56. Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"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. ..."

57. The Government made no observations on the applicant's complaints.

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

58. The Commission notes the nature of the charge to which the applicant pleaded guilty (theft contrary to the Theft Act 1968) and the sentence imposed (which included a three month suspended sentence). The Commission considers that Article 6 para. 1 is applicable to the present court-martial proceedings since they involved the determination of the applicant's sentence following his plea of guilty to a criminal charge (Eur. Court HR, Engel v. the Netherlands judgment of 18 June 1976, Series A no. 22, pp. 33-36, paras. 80-85, Eur. Court HR, Eckle and Others v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35, paras. 76-77; Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V no. 49, pp. 1830-31, paras. 32-33, with further references; and Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decision 1997-I, no. 30, p. 279, para. 69).

(b) The independence and impartiality of the court-martial

59. The main complaint of the applicant is that the court-martial was neither independent nor impartial within the meaning of Article 6 para. 1 of the Convention mainly because of the 'all controlling' role of the Convening Authority. In particular, the applicant points to that officer's institutional connection with the prosecution of the case and with the members of the court-martial.

60. The Commission recalls that, in the Findlay judgment (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, loc. cit.), 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.

61. The Court has also found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (Eur. Court HR, Coyne v. the United Kingdom judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V). 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 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.

62. The Commission recalls that in the present case a naval court-martial was convened pursuant to the Naval Discipline Act 1957 to try the applicant on the charge against him.

63. The Commission does not find, and the Government do not suggest, that there were differences which were relevant and significant between the role of the Convening Authority in the organisation of the applicant's naval court-martial and of the Convening Officer in Mr Coyne's or Mr Findlay's courts-martial. At the relevant time, it is clear that the Convening Authority was central to the prosecution in naval courts-martial and similar connections in rank and command structure existed between the members of naval courts-martial and that Authority. The Convening Authority could also countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial (orders 13(2) and 28(2) of the 1991 Orders). While the post court-martial 'confirming' stage did not exist in the naval court-martial procedure, the Convening Authority retained extensive powers as regards suspending a sentence (sections 90 and 92 of the 1957 Act). The same limitations attached to the Judge Advocate's role in naval courts-martial as applied in air force and army courts-martial - the Judge Advocate was not a member of the court-martial and his advice on sentence was not made public. Moreover, in the present case, the Judge Advocate was the immediate superior of the Prosecutor who was, in turn, the accused friend's superior officer.

64. Accordingly, the Commission considers that the applicant's court-martial did not fulfil the independence and impartiality requirements of Article 6 para. 1 of the Convention. The Commission also considers that, since the applicant was faced with a serious charge of a 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 the subsequent review procedures.

65. 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.

66. 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 (Eur. Court HR, Findlay v. the United Kingdom judgment, loc. cit., Comm. Report, para. 108).

CONCLUSION

67. The Commission concludes, unanimously, that in the present case 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) The remaining points at issue under Article 6 para. 1

68. The applicant also complains that the court-martial proceedings were not fair within the meaning of Article 6 para. 1 of the Convention. He submits, inter alia, that the Convening Authority controlled the proceedings and that the Judge Advocate controlled the accused friend's career. He takes issue with the fact that the advice of the Judge Advocate to the court-martial on sentence was given in private and with the qualifications and experience of the members of the court-martial and of the officials who considered his appeal petitions. He also argues that there was no equality of arms between the defence and the prosecution.

69. He further complains that the court-martial proceedings were not "public" referring, inter alia, to the private nature of the appeal hearings and of the advice given by the Judge Advocate on sentencing to the court-martial. In addition, he complains that the court-martial was not "established by law" within the meaning of Article 6 para. 1 of the Convention due, inter alia, to the ad hoc manner in which courts-martial are convened.

70. In view of its conclusions in paragraph 67 above, the Commission does not consider that it is necessary to examine separately these complaints of the applicant.

CONCLUSION

71. The Commission concludes, unanimously, that in the present case it is not necessary to examine separately the applicant's complaints under Article 6 para. 1 of the Convention that the court-martial proceedings were unfair in other specific respects, that the proceedings were not "public" and that the court-martial was not "established by law".

D. As regards Article 13 of the Convention

72. Article 13 of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

73. The Commission recalls that the requirements of Article 13 are less strict than, and are absorbed by, those of Article 6 para. 1 of the Convention, Article 6 para. 1 being the lex specialis (see, for example, No. 24142/94, Dec. 6.4.95, D.R. 81, p. 108).

CONCLUSION

74. The Commission concludes, unanimously, that in the present case it is not necessary to examine separately the applicant's complaint under Article 13 of the Convention.

E. Recapitulation

75. The Commission concludes, unanimously, that in the present case 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. 67).

76. The Commission concludes, unanimously, that in the present case it is not necessary to examine separately the applicant's complaints under Article 6 para. 1 of the Convention that the court-martial proceedings were unfair in other specific respects, that the proceedings were not "public" and that the court-martial was not "established by law" (para. 71).

77. The Commission concludes, unanimously, that in the present case it is not necessary to examine separately the applicant's complaint under Article 13 of the Convention (para. 74).

       M.F. BUQUICCHIO   M.P. PELLONPÄÄ

          Secretary     President

    to the First Chamber of the First Chamber