EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27267/95

David Robert Hood

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 28 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-14) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-14)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 15-64)              4

A. The particular circumstances of the case

(paras. 15-31)              4

B. Relevant domestic law

(paras. 32-64)              7

III. OPINION OF THE COMMISSION

(paras. 65-134) 13

A. Complaints declared admissible

(para. 65) 13

B. Points at issue

(para. 66) 13

C. As regards Article 5 para. 3 of the Convention

(paras. 67-84)              14

CONCLUSION

(para. 85) 17

D. As regards Article 5 para. 4 of the Convention

(paras.  86-98)              17

CONCLUSION

(para. 99) 21

E. As regards Article 5 para. 1 of the Convention

(paras. 100-102) 21

CONCLUSION

(para. 103) 21

TABLE OF CONTENTS

Page

F. As regards Article 13 of the Convention

(paras. 104-105) 21

CONCLUSION

(para. 106) 22

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

(paras. 107-127) 22

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

Convention

(para. 109) 22

(b) The independence and impartiality of the

court-martial and the fairness of the

proceedings

(paras. 110-115) 22

CONCLUSION

(para. 116) 23

(c) The "public" nature of the court-martial hearing

(paras. 117-120) 23

CONCLUSION

(para. 121) 24

(d) Remaining points at issue

(paras. 122-126) 24

CONCLUSION

(para. 127) 25

H. Recapitulation

(paras. 128-134) 25

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              27

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 1970 and resident in Deeside , Wales. 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 Agent, initially, Mr Martin Eaton and, subsequently, Ms. Sally Langrish , both of the Foreign and Commonwealth Office.

4. The case concerns the compliance of the applicant's pre-trial detention with Article 5 of the Convention and the independence and impartiality of the court-martial which tried charges against the applicant. The applicant 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.

B. The proceedings

5. The application was introduced on 18 April 1995 and was registered on 5 May 1995.

6. On 26 November 1996 the Commission 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 5 paras. 3, 4 and 5 and under Article 6 para. 1 of the Convention.

7. The Government's observations were received on 14 April 1997 after one extension of the time-limit fixed for this purpose. The applicant's observations were received on 10 June 1997.

8. On 1 December 1997 the Commission declared admissible the applicant's complaints under Article 5 paras. 3, 4 and 5, Article 6 para. 1 and under Article 13 of the Convention relating to his detention after 27 November 1994. It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit further observations. The Government submitted observations on 4 February and 1 April 1998 and the applicant submitted his observations on 29 January and 17 February 1998.

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 in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENI ï‚„

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELI NAS

E.A. ALKEMA

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 28 May 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. 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

(a) The court-martial proceedings

15. On 1 April 1990 the applicant, who was a soldier with the regular forces of the British Army, went missing from his unit in Germany. He returned on 16 May 1990.

16. He went absent again on 17 May 1990 and he gave himself up to the police in the United Kingdom on 6 August 1990. He was returned to his unit and was held in close arrest until he was released to go home on compassionate leave. He then returned to his unit in Germany and to close arrest. On 17 January 1991 he was deployed to the Persian Gulf. On 21 March 1991 he returned to Germany and was sent again on compassionate leave. On 9 May 1991 he returned to his unit in Germany.

17. The applicant went missing again from his unit on 16 June 1991 following a nervous breakdown and after he had been remanded for trial by court-martial on a charge of wounding with intent (subsequently abandoned) and on two charges of being absent without leave. The applicant remained absent until 9 December 1993 when he gave himself up to the police who allowed him to return to his unit. Pending his court-martial he was accommodated in a barrack block.

18. On 11 May 1994 the applicant went on two weeks leave but he did not return at the end of his leave. At 23.15 on 27 November 1994 the applicant was arrested from his home by the civilian police and taken to the police station from where, on 28 November 1994, he was taken by army escort to an army barracks. On 29 November 1994 the applicant was brought before his Commanding Officer (Lieutenant Colonel Dawson ) pursuant to Rule 4 of the Rules of Procedure (Army) 1972.

19. The applicant was detained in close arrest. He remained in close arrest until his court-martial which finished on 4 April 1995 (after which he served his sentence). He was detained in a cell in a guard block under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care.

20. In or about December 1994 an officer of the applicant's regiment, who was not legally qualified, was appointed to defend the applicant. The applicant was told that he would be appearing before the Unit Adjutant (Captain Johnson - "the Adjutant") after Christmas and the applicant retained a solicitor prior to Christmas. Acting on that solicitor's advice he prepared a statement which was completed by 4 January 1995. On 4 January 1995 the applicant appeared before the Adjutant and was given the abstract of evidence. He was told that he should read the abstract and check that it was accurate. The applicant later confirmed in evidence that he did not contest that, on this occasion, he had been cautioned pursuant to Rule 10 of the Rules of Procedure (Army) 1972.

21. On the advice of his solicitor, the applicant also obtained a statement from his girlfriend. That solicitor ceased advising the applicant on 17 January 1995. Having received the statement from his girlfriend on 19 January 1995, the applicant asked to see the Adjutant. He submitted both statements to the Adjutant on 20 January 1995, which statements were then attached to the abstract of evidence. He was then remanded for court-martial by his Commanding Officer and the applicant applied for legal aid from the military authorities. The charge sheet, dated 25 January 1995 and signed by his Commanding Officer and by the Convening Officer's staff officer (Major Dalrymple ), records two charges of absence without leave and two of desertion contrary to the Army Act 1955.

22. The applicant's solicitor had, on 11 January 1995, requested the preparation of a psychiatric report on the applicant. Pending the completion of this report, the date initially fixed for the court-martial (16 January 1995) was vacated. In early February 1995 the applicant instructed his present representative who awaited the grant of legal aid by the military authorities before commencing work for the applicant. Having been initially refused, legal aid was granted by letter dated 14 February 1995 from the Ministry of Defence . The applicant's solicitor then requested the preparation of a psychiatric report. On 20 February 1995 the applicant was taken before the regimental headquarters discipline clerk and required to sign a form outlining what his pleas at the court-martial would be. The form noted that the applicant would plead not guilty. By letter dated 22 February 1995 the applicant's solicitor notified the Convening Officer that, bearing in mind the late grant of legal aid and the time required to obtain a psychiatric report, the defence would not be ready for 1 March 1995 (a further date envisaged for the court-martial).

23. By notice dated 17 March 1995 a district court-martial was convened to try the applicant on the charges. The court-martial took place on 3 and 4 April 1995. The assistant prosecuting officer was the Adjutant (Captain Johnson). The applicant, who was legally represented, pleaded not guilty.

24. His solicitor challenged the admission into evidence of the statements of the applicant and his girlfriend. The Judge Advocate (having heard evidence from the Adjutant and the applicant) found that Rule 10 of the Rules of Procedure (Army) 1972 had been followed. Given the applicant's legal representation at the relevant time and the procedures followed, the Judge Advocate could not see "how a fairer situation could have arisen" and, accordingly, he rejected the applicant's submission (under section 78 of the Police and Criminal Evidence Act 1984) that the admission of those statements would in the circumstances have an adverse effect on the fairness of the proceedings. The Judge Advocate clarified during the court-martial that "we can take it as an agreed fact that the Adjutant or the assistant Adjutant will either be the prosecuting or assistant prosecuting officer in any court-martial".

25. The applicant was convicted on the two charges of absence without leave and on one of the charges of desertion; the remaining charge of desertion was reduced to one of absence without leave. He was ordered to undergo detention for eight months and to be dismissed from the service. The sentence was expressed as taking into account the period of close arrest immediately preceding the court-martial.

26. On 10 May 1995 confirmation of the applicant's conviction and sentence was promulgated. On 1 June 1995 he petitioned the Army Board and he also filed, on 15 June 1995, an application to the Courts-Martial Appeal Court ("CMAC"). By letter dated 13 July 1995 the applicant was informed that his petition to the Army Board had been rejected. Since his earlier application for leave to appeal was pre-mature, the applicant re-submitted the application to the single judge of the CMAC for leave to appeal to that court by letter dated 2 August 1995. That application was rejected on 13 September 1995 and the renewed application to the full CMAC was also rejected on 18 March 1996.

(b) The habeas corpus proceedings

27. The 72nd day of the applicant's detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972, a direction was issued on 3 February 1995. It was signed on behalf of the Convening Officer (by Major Dalrymple ) and attached an authorisation from the Commander in Chief dated 31 January 1995 which directed the applicant's continued detention "to prevent him absconding before he is brought to trial" ("the 72 day delay report"). The Commander in Chief was, however, to be informed if the court-martial did not take place by 7 March 1995 (the applicant's 100th day of detention).

28. On 10 February 1995 the applicant's solicitor requested Major Dalrymple to furnish a copy of the authorisation for the extension of the applicant's period of close arrest. On 14 February 1995 that solicitor informed Major Dalrymple of the applicant's intention to apply for a writ of habeas corpus raising mainly the 72 day delay report and, in a separate letter to the Adjutant, forwarded a supporting affidavit for signature by the applicant. The affidavit was signed on 17 February 1995 and returned to the applicant's lawyer on the same day. The documents relevant to the 72 day delay report were sent by facsimile to the applicant's lawyer on 20 February 1995.

29. The notice of motion commencing the habeas corpus proceedings was filed on 17 February 1995 in the Queen's Bench Division of the High Court. The first affidavit filed on behalf of the applicant by his legal representatives was dated 15 February 1995 and related only to the 72 day delay report. That affidavit attached an unsworn affidavit of the applicant who accepted that he had left his unit as a result of psychiatric problems. The applicant submitted that he had had no opportunity to provide reasons as to why he should not be kept in close arrest and he raised three: he mainly queried the regularity of the 72 day delay report; he submitted that his psychiatric condition made close arrest difficult to cope with; and he further referred to the delay in holding the court-martial and his consequent lengthy detention. He stated that he had no intention of absconding again. A further affidavit was filed on behalf of the applicant on 20 February 1995 challenging the timeliness of the preparation of, and the alleged lack of reasons given in, the 72 day delay report which report had, by then, been received from the army authorities.

30. On 21 February 1995 the High Court rejected the applicant's habeas corpus application. It noted that a court-martial had been initially fixed for 16 January 1995 and that the reason for the delay in holding the court-martial was the defence's need to obtain a psychiatric report.

31. As to the completion of the 72 day delay report, the court found that the report had been properly completed in a timely fashion and that it recorded that the reason for the applicant's continued detention was to prevent him from absconding prior to trial which the court noted was "a perfectly understandable reason" having regard to the charges against the applicant. Costs were awarded against the applicant, the judge pointing out that it was for the respondent to consider whether they would take the matter of costs further. The Treasury Solicitor has "attempted" to obtain payment of those costs.

B. Relevant domestic law

32. The main provisions governing the detention and trial of members of the army were at the relevant time contained in the Army Act 1955 ("the 1955 Act"), in the Rules of Procedure (Army) 1972 ("the 1972 Rules") and in the Queen's Regulations for the Army 1975 ("the Queen's Regulations"). Various amendments have since been introduced by, inter alia , the Armed Forces Act 1996 (in force since April 1997) and by the Investigation and Summary Dealing (Army) Regulations 1997 ("the 1997 Regulations).

33. Desertion and absence without leave constitute offences under the 1955 Act. The punishment for the offence of desertion is imprisonment for an unlimited term (subject to the sentencing powers of the court-martial in question) and that for absence without leave is imprisonment for a maximum of 2 years.

(a) Arrest

34. In general, once there is reasonable cause to suspect that a person subject to military law has deserted or gone absent without leave, the civilian police, an officer, warrant officer, non-commissioned officer or soldier of the regular forces may arrest that person. A person so arrested must, as soon as is practicable, be brought before a civilian court of summary jurisdiction (section 186 of the 1955 Act).

35. In addition, a warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by his/her Commanding Officer and any such warrant must be addressed to the civilian police. A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military authorities together with a certificate which records the fact, date and time of the arrest (section 190A of the 1955 Act).

(b) Investigation of charges and detention

36. The relevant rules governing the detention of the accused use the word "arrest" when referring to detention. The accused's detention can be in the form of "open arrest" or "close arrest". Open arrest confines the accused to barracks but otherwise allows him freedom of movement. Close arrest means that the accused is confined to a cell in the unit guardroom under constant supervision of the guard. The relevant rules also vary somewhat depending on whether the accused is a non-commissioned officer or soldier or, on the other hand, an officer or warrant officer. In the former case (described below), the Commanding Officer's powers are generally greater as regards the investigation and pursuit of charges against an accused.

( i ) The 1955 Act

37. Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and as soon as may be either proceedings shall be taken for punishing his offence or he shall be released from arrest. In addition, should that detention last longer than 8 days without a court-martial being convened, a report (a "delay report") on the necessity for further delay shall be made by the person's Commanding Officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court-martial is assembled or the offence is dealt with summarily or the accused is released from detention.

38. Section 76 of the 1955 Act provides that any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person's Commanding Officer and, before any action is taken, the Commanding Officer must investigate the charge.

39. After investigation, a charge (which cannot be dealt with summarily) can be dismissed by a Commanding Officer if he is of the opinion that it ought not to be proceeded with. Moreover, if it appears to the Commanding Officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under the 1955 Act, the Commanding Officer may stay further proceedings (sections 77 and 77A of the 1955 Act).

40. If the Commanding Officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the Commanding Officer is of the opinion that it should not be so dealt with, he shall take the "prescribed steps" with a view to the charge being tried by court-martial (section 78(1) and (2) of the 1955 Act). Dealing summarily with a charge includes taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78(3) of the 1955 Act). However, where the Commanding Officer has taken steps to have the charge tried by court-martial, any higher authority to whom the case is forwarded may refer the charge back to the Commanding Officer to be tried summarily if the charge is one that can be dealt with summarily (section 78(6) of the 1955 Act) or with a direction to dismiss the charge or to stay all further proceedings therein. It is the Convening Officer who finally decides on the charges to be retained against an accused.

41. The prescribed steps for sending a case for trial by court-martial include, in accordance with Rule 13 of the 1972 Rules, sending to higher authority a draft charge sheet, the abstract of evidence, a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with (for example, by district or general court-martial).

42. Section 181 of the 1955 Act allows a soldier to make a complaint if he considers that he has been wronged in any matter.

(ii) The 1972 Rules

43. Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his Commanding Officer shall, unless it is impracticable, within 48 hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the 48 hours, the Commanding Officer must report the case to a "higher authority" together with the reasons for the delay in commencing the investigation (Rule 4(2) of the 1972 Rules). Regulation 20 of 1997 Regulations now specifically provides that the Commanding Officer must also inform the accused whether, and if so for what reason, he is to be kept in closed or open arrest, which decision the accused can appeal to the Commanding Officer's immediate higher authority.

44. Rule 5 of the 1972 Rules provides that the report to which section 75 of the 1955 Act refers shall be in the form set out in Schedule 1 to the 1972 Rules, shall be signed by the Commanding Officer of the person detained and shall be sent to the person who would be responsible for convening the court-martial. According to Schedule 1 of the 1972 Rules the report must, inter alia , specify whether the accused is in close or open arrest; the reasons for his detention; whether an abstract of evidence was taken and when; whether an application for trial has been made and, if not, why not; whether Army Legal Services' advice has been sought, received and followed; whether a date for trial has been fixed; and the reasons for the delay since the last report.

45. Rule 6 of the 1972 Rules provides that the accused shall not be held in arrest for more than 72 consecutive days without a court-martial having been convened unless the Convening Officer directs in writing, citing reasons, that the accused shall not be released from detention.

46. Rule 10(1) provides that an abstract of evidence shall be made by the Commanding Officer or by another officer on the direction of the Commanding Officer; the accused shall not be present while the abstract of evidence is being made; and it shall consist of a signed statement by, or a precis of the evidence of, each witness whose evidence is necessary to prove the charge. Once compiled, the accused is given (normally by the officer who compiled the abstract) a copy and the accused is cautioned as follows:

"This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence." (Rule 10(2)of the 1972 Rules)

47. Statements submitted by the accused (including those of witnesses which he would like included in the abstract) shall be attached to the abstract of evidence and shall thereafter form part of it (Rule 10(4) of the 1972 Rules). The pamphlet entitled "Rights of a Soldier" (which is given to accused persons and which is available in the cells in the guardroom) describes the purpose of the extract of evidence as, inter alia , to "provide a brief for the Prosecutor at trial" and to inform the accused of the evidence which will be given at trial.

(iii) Queen's Regulations

48. Paragraph 6.005 of the Queen's Regulations states that the mere allegation that a person subject to military law has committed an offence does not, of itself, necessarily warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline.

49. The circumstances which would warrant placing an "offender" under "close" arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself; and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (also paragraph 6.005).

50. Paragraph 6.007 provides that (subject to, inter alia , the general principle that the accused is not to be unnecessarily held under arrest) Commanding Officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released.

51. Paragraph 6.045(c) provides that the person into whose custody the accused is committed is to inform the accused of the rank, name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation. Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia , that on the receipt of every delay report the Convening Officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (sub-section (a) and (b)). On receipt of the fourth delay report, or, in any event, after 40 days detention, the Convening Officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (sub-section (c)). If an accused is not brought to trial by the 72nd day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (sub-section (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)).

52. Where an accused has been in detention for 72 consecutive days without a court-martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (Queens Regulations 6.047(f)). Delay reports are not, as a rule, copied to the accused or his representative.

(c) Legal Aid

53. The provision of legal aid from the military authorities is regulated by paragraphs 6.094-6.095 of the Queen's Regulations together with Chapter 6, Annex D to those Regulations. An application can only be made to the military authorities for legal aid for civilian professional assistance once the individual has been remanded for trial by court-martial. The general criteria for the grant of legal aid from the military authorities are that legal aid would have been provided if the case had been brought in the criminal courts of the United Kingdom or the accused is being brought to trial by court-martial for a service offence which is serious or involves points of legal difficulty, or the expert examination of witnesses is required.

54. The armed forces' legal aid scheme does not apply to applications made to the civilian courts for a writ of habeas corpus but civil legal aid from the civilian authorities is available for such proceedings. A person will not be granted representation for the purposes of any such proceedings unless he/she has reasonable grounds for taking, defending or being a party to proceedings (section 15(2) of the Legal Aid Act 1988). Such an application for legal aid will only be approved after all the questions of fact or law arising in the action, cause or matter to which the application relates, and after all the circumstances in which the application was made, have been considered (Civil Legal Aid (General) Regulations 1989).

55. An application for an emergency legal aid certificate can be made pursuant to the Civil Legal Aid (General) Regulations 1989. The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings, the circumstances in which it is required, whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid. 

56. Finally, members of the armed forces can, in addition, obtain free legal advice during police interviews pursuant to the Police and Criminal Evidence Act 1984.

(d) Habeas Corpus

57. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. Jurisdiction is normally exercised by the Divisional Court of the Queen's Bench Division of the High Court and habeas corpus is available to persons in military custody (R v. Royal Army Service Corp. Colchester ex parte Elliott (1949) 1 All E 373).

58. The scope of this review will depend on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. However, the  court will examine the legal validity of an accused's detention, whether there is sufficient evidence to detain him and, if the power to detain depends on the prior establishment of an objective fact, the court will decide whether the fact exists ( Khawaja v. Secretary of State for the Home Department [1984] AC 74).

59. An order for detention can be upset if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose (R v. Brixton Prison (Governor), ex parte Soblen [1962] 3 AER 641). Moreover, the courts will enquire into the period of time which has elapsed before a court-martial; that examination will extend as far back as the date of arrest and the court will, if necessary, order release (Re Mackle , reported in The Independent of 26.2.1993).

60. Once the applicant makes out a prima facie case that detention is unlawful, the burden of proof then passes to the detaining authority to show that detention is lawful ( Khawaja v. Secretary of State for the Home Department, loc. cit.). The standard of proof required of the detaining authority is the civil standard but, since grave issues of personal liberty are involved, the degree of probability required will be high.

(e) District army courts-martial

61. The relevant domestic law and practice are outlined in the Findlay and Coyne judgments (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997 and Coyne v. the United Kingdom judgment of 24 September 1977, Reports of Judgments and Decisions for 1997). The 1996 Act substantially amends the role of the Convening Officer in court-martial proceedings.

62. Section 90 of the 1955 Act provides, inter alia , that an officer who at any time between the date on which the accused was charged with the offence and the date of the court-martial has been the Commanding Officer of the accused, and any officer who has investigated the charge against the accused, shall not sit as a member of a general or district court-martial or act as Judge Advocate at such a court-martial.

63. Section 94 of the 1955 Act provides that a court-martial will be an open trial. Paragraph 6.101 of the Queen's Regulations provides that members of the press and public are to be permitted to attend a court-martial and trial listings are to be posted beforehand in a place accessible to the public.

64. Pursuant to Rule 22(1)(g) of the 1972 Rules a Convening Officer shall appoint an officer subject to military law or counsel assisted by such an officer to prosecute or detail a Commanding Officer to appoint an officer subject to military law to prosecute.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

65. The Commission has declared admissible the applicant's complaints:

- that he was not brought promptly before an "officer authorised by law to exercise judicial power" following his arrest;

- that, subsequently, he was not entitled to take proceedings by which the lawfulness of his pre-trial detention could have been decided by a court;

- that he had no enforceable right to compensation in respect of violations of his Convention rights regarding his pre-trial detention;

- that he had no effective domestic remedy in respect of those violations of his Convention rights;

- that the court-martial procedure did not provide him with a fair hearing before an independent and impartial tribunal;

- that the court-martial hearing was not "public"; and

- that the court-martial was not "established by law" and that the proceedings in other specific respects did not comply with the requirement of fairness in Article 6 para. 1 of the Convention.

B. Points at issue

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

- whether the applicant was brought promptly before an "officer authorised by law to exercise judicial power" within the meaning of Article 5 para. 3 of the Convention;

- whether the applicant was entitled to take proceedings by which the lawfulness of his continued detention could have been decided by a court within the meaning of Article 5 para. 4 of the Convention;

- whether the applicant had an enforceable right to compensation within the meaning of Article 5 para. 5 of the Convention;

- whether the applicant had an effective domestic remedy within the meaning of Article 13 of the Convention;

- 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 applicant was afforded a "public" hearing within the meaning of Article 6 para. 1 of the Convention; and

- whether the court-martial was "established by law" and whether the proceedings in other specific respects complied with the requirement of fairness in Article 6 para. 1 of the Convention.

C. As regards Article 5 para. 3 of the Convention

67. The applicant complains that after his arrest he was not brought promptly before a judge or other officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 of the Convention, which Article, insofar as relevant, reads as follows:

"Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial....

68. The applicant does not dispute that he was brought before his Commanding Officer on 29 November 1994 but he argues that he was not told the reasons for his detention in close arrest or allowed to be heard in those respects and that there was no provision for him to be so heard. He also points out that a written record was not prepared of those proceedings before the Commanding Officer. He further refers to the criteria to be applied by his Commanding Officer in deciding on pre-trial detention and to the "promptness" of the procedure. In addition, his Commanding Officer, and all others making decisions as to his detention, were all immediately concerned with the prosecution of the case against him and were not, as such, independent of the prosecution.

69. The Government accept that no written record was made of hearings held pursuant to Rule 4 of the 1972 Rules (and that the 1997 Regulations have not changed this). As to whether an accused is given an opportunity to make representations as regards the need for pre-trial detention, the Government point out that the effect of Rule 4 of the 1972 Rules is that when an accused is brought before his Commanding Officer he is "thereby" given the opportunity to be heard. They submit, however, that it was explained to the applicant that he would be held in close arrest due to his previous record of absence without leave.

70. In addition, the Government argue that the Commanding Officer was an officer authorised by law to exercise judicial power within the meaning of Article 5 para. 3 of the Convention. They point, in the first place, to the special circumstances which apply in the armed forces and the special position of those who serve in them. They argue that, in view of the provisions of Rule 4 of the 1972 Rules and paragraphs 6.005-6.006 of the Queen's Regulations, the Commanding Officer was required to decide promptly whether the applicant should be detained (reviewing all circumstances relevant to the detention and deciding whether there were circumstances justifying such detention) and as to the nature of any such detention. The Government further argue that the matters which the Commanding Officer must consider are, with certain adaptation to the military context, the same as would be considered by a Magistrates' Court.

71. The Government further submit that the Commanding Officer is independent of the executive and of the parties to the extent that this is possible in a necessarily self-contained military system. They submit that the Commanding Officer was not immediately concerned, as the applicant alleges, with the prosecution of the case, since that officer's other roles (following the making of an allegation against a soldier and any subsequent remand for trial by court-martial) are either investigative or quasi-judicial. As regards the special military context referred to above, the Government add that the "executive" is the Ministry of Defence but that in such a military procedure there is only one true party - namely the accused, from whom the accused's Commanding Officer is independent. Finally, the 1955 Act, the 1972 Rules and the Queen's Regulations contain sufficient guarantees to preserve the Commanding Officer's independence of the accused.

72. The Commission notes the nature of the relevant charges and the penalty imposed and finds that the applicant was arrested on reasonable suspicion of having committed an "offence" within the meaning of Article 5 para. 1(c) and that, consequently, his complaint falls within the scope of Article 5 para. 3 of the Convention (Eur. Court HR, De Jong , Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, pp. 21-22, paras. 42-44). In addition, the applicant's "close arrest", involving as it did his confinement to a cell in the unit guardroom under the supervision of the guard, constitutes "detention" for the purposes of Article 5 para. 3 of the Convention (Eur. Court HR, Engel   and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 26, para. 63).

73. The Commission recalls that judicial control of interference by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3, the purpose being to minimise the risk of arbitrariness as regards the pre-trial detention of accused persons. Judicial control is implied by the rule of law which is one of the fundamental principles of a democratic society, expressly referred to in the Preamble to the Convention and from which the whole Convention draws its inspiration (Eur. Court HR, Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145, p. 32, para. 58).

74. The applicant does not dispute that he was brought before his Commanding Officer on 29 November 1994 in pursuance of Rule 4 of the 1972 Rules and the Government maintain that the Rule 4 hearing is sufficient to comply with the requirements of Article 5 para. 3 of the Convention. The Commission has, accordingly, considered whether the Rule 4 proceedings had the necessary "judicial character" providing "guarantees appropriate to the kind of privation of liberty in question" (Eur. Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, para. 30).

75. The first relevant element of the judicial character of the proceedings is the requirement that the "officer" must be seen to be independent of the executive and of the parties to the proceedings because otherwise his impartiality could be capable of appearing open to doubt (Eur. Court HR, Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, para. 31, Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 18, paras. 42-43 and Brincat v. Italy judgment of 26 November 1992, Series A no. 249-A, pp. 11-12, paras. 20-21).

76. In order to be seen to be so independent of the parties, the officer exercising judicial power for the purpose of Article 5 para. 3 cannot also have a role in connection with the prosecution in the same proceedings; on the other hand, another investigative role (involving compiling evidence for and against the accused) or another judicial role is not necessarily incompatible with an Article 5 para. 3 role (Eur. Court HR, De Jong , Baljet and Van den Brink v. the Netherlands judgment, loc. cit., pp. 22-23, para. 47; Van der Sluijs , Zuiderveld and Klappe judgment of 22 May 1984, Series A no. 78. p. 17, para. 41; Duinhof and Duijf judgment of 22 May 1984, Series A no. 79, pp. 31-32, para. 32; Pauwels v. Belgium judgment of 26 May 1988, Series A no. 135, p. 18, para. 37 and No. 14292/88, Dec. 11.10.89, D.R. 63 p. 203).

77. The Government argue that the Commanding Officer's other roles are investigative and quasi-judicial. However, the Commission notes that the Commanding Officer can issue a warrant for the arrest of a soldier suspected of desertion or absence without leave. In addition, he investigates the charges including compiling an abstract of evidence and the Commission notes, in this respect, the description of the abstract contained in Rule 10 of the 1972 Rules and in the information pamphlet given to accused persons. Moreover, the Commanding Officer can stay the proceedings; he can also dismiss the charges (if they are not charges which can be dealt with summarily and if he is of the opinion that they ought not to be proceeded with); and he can also deal with the charge summarily (involving taking evidence, pronouncing on guilt or innocence and imposing sentence). Otherwise, he can send the case for trial by court-martial. In sending the case for trial by court-martial, the Commanding Officer signs a draft charge sheet containing the charges against an accused which he considers should be pursued (although it is the Convening Officer who finally directs the charges to be retained against an accused). Furthermore, the Commanding Officer can be requested by the Convening Officer to appoint the prosecutor in the court-martial proceedings.

78. To the extent that those functions of the Commanding Officer assigned by the 1955 Act, the 1972 Rules and the Queen's Regulations are, in fact, carried out by the Adjutant, the Commission observes that the Adjutant thereby acts on behalf of the Commanding Officer. The Adjutant is, in any event, also directly subordinate in rank to his Commanding Officer. Furthermore, in the present case, the Adjutant who had dealt with the compiling of the abstract of evidence on behalf of the Commanding Officer, and who saw the applicant twice in that respect, was appointed assistant prosecuting officer for the purposes of the court-martial and it appears, from the ruling of the Judge Advocate during the court-martial in the present case, that the Adjutant is generally appointed prosecutor or assistant prosecutor.

79. In such circumstances, the Commission considers that the Commanding Officer's functions and powers as regards the conduct of the proceedings subsequent to the Rule 4 hearing are such that he can be considered to be central to the prosecution of the case. Accordingly, the Commission considers that the Commanding Officer could not be considered as independent of the prosecution at the stage of the Rule 4 hearing and, consequently, that officer's objective impartiality is open to doubt. In view of this conclusion, the Commission does not find it is necessary to consider the independence of the Commanding Officer from the executive.

80. Moreover, in contrast to the position in the above-cited military cases before the Court and the Commission, the person who conducts the Rule 4 hearing is the accused's direct Commanding Officer. As such, he has a professional interest in assuring discipline and preventing disorder in his command. However, as the officer who conducts the Rule 4 hearing, he is also empowered to refuse the release of the accused on the grounds that it is undesirable "in the interests of discipline" that the accused be at large or allowed to consort with his comrades (paragraph 6.005 of the Queen's Regulations). Accordingly, the Commission further considers that for this reason alone an accused could reasonably question that officer's impartiality in deciding the issue of his pre-trial detention.

81. Accordingly, the Commission considers that for the above reasons the applicant's appearance before his Commanding Officer pursuant to Rule 4 of the 1972 Rules did not satisfy the requirements of judicial control guaranteed by Article 5 para. 3 of the Convention.

82. The second relevant element of the judicial character of the proceedings is the requirement that the officer must himself hear the accused, examine all the facts militating for and against the accused's pre-trial detention and set out in the decision on detention those facts upon which that decision is based (Eur. Court HR, Schiesser v. Switzerland judgment, loc. cit. and Letellier v. France judgment of 26 June 1991, Series A no. 207, p. 18, para. 35).

83. In this respect, the Commission notes the applicant's submission, undisputed by the Government, that no record of the Rule 4 hearing was prepared. Therefore there is no written proof of the fact that the hearing took place, of the attendance of the accused, of the accused being informed of the charges against him or of the reasons for his pre-trial detention or of the fact that the accused was heard by that officer on those matters. Moreover, it observes that at the relevant time there was no specific provision for the accused to be informed of the reasons for his pre-trial detention or to be heard on such matters during the Rule 4 procedure. However, given the finding at paragraph 81 above, the Commission does not find that it is necessary to consider whether, for these added reasons, the Rule 4 procedure did not provide guarantees appropriate to the deprivation of liberty in question.

84. Similarly, given the finding in paragraph 81 above, the Commission does not consider that it is necessary to deal also with the applicant's submissions as to the criteria applied by his Commanding Officer in deciding whether he was to be detained or as to the "promptness" of the procedure.

CONCLUSION

85. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

D. As regards Article 5 para. 4 of the Convention

86. The applicant complains about the lack of a procedure to challenge his detention in close arrest submitting that the habeas corpus procedure is insufficient in this respect. He invokes Article 5 para. 4, which reads as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful"

87. He submits that habeas corpus proceedings provided no opportunity to have the merits of his case for release considered and that such proceedings concern solely the domestic lawfulness of detention. He also refers to his not being eligible for legal aid on grounds of his earnings and to the costs order against him. He further argues that he was given no information during his detention which would have allowed him to contest the lawfulness of his detention.

88. The Government submit that the habeas corpus procedure, which is available to persons held in military custody, includes an examination of the domestic legality of an accused's detention, of whether there is sufficient evidence to justify the decision to detain the applicant and of certain facts where such facts are a necessary pre-condition of the power to detain. The court may also enquire into the period of time which has elapsed or is likely to elapse before trial and will, if necessary, order release. Accordingly, and while it is true that the habeas corpus proceedings are concerned with the lawfulness of detention in domestic law, in view of the breadth of the investigation there is no relevant difference for present purposes between a review of lawfulness in domestic law and under the Convention. Legal aid is available after remand for trial by court-martial but this relates only to the court-martial proceedings. However, legal aid may be available from the civilian authorities in relation to applications to a civilian court in habeas corpus proceedings.

89. In addition, independently of the habeas corpus proceedings, the Government submit that the Commanding Officer was, pursuant to paragraph 6.007 of the Queen's Regulations, under a duty to keep under constant review the need to continue to detain the applicant together with the nature of that detention. In this respect, the Government submit that the applicant's Commanding Officer continued to fear that the applicant could abscond if released, given his history of doing so and that regular delay reports were completed as regards the applicant's continued detention. The Government also note that one of the reasons for the length of the applicant's pre-trial detention was his solicitor's wish to obtain a psychiatric report. Furthermore, the accused can make a complaint pursuant to section 181 of the 1955 Act. Finally, the Government confirm that there is no requirement for an accused to be served with copies of the relevant delay reports and that this would not normally take place.

90. The Commission recalls that Article 5 para. 4 requires the availability of a remedy allowing a competent court to examine not only compliance with the applicable domestic rules but also the reasonableness of the suspicion grounding arrest and the legitimacy of the purpose pursued by that arrest and the on-going detention (Eur. Court HR, Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145, pp. 34-35, para. 65). However, it is not required that that review should extend to a complete review on all questions of fact of the exercise of the power to detain (No. 9174/80, Comm. Report 11.10.83, D.R. 40, p. 42). An accused must have legal assistance when pursuing his claim for release where it is necessary for the remedy to be effective (Eur. Court HR, Woukam Moudefo v. France judgment of 11 October 1988, Series A no. 141-B, Comm. Report 16.7.87, pp. 42-43, paras. 88-91).

91. In the first place, the Commission notes that the applicant's complaints do not relate to the reasons for or the fact of his arrest by the civilian police in November 1994 which led to the period of detention under consideration. In any event, the applicant accepts that he was absent from his unit four times prior to the relevant period of detention. He does not dispute that on the third occasion he went missing following his remand for court-martial on charges of absence without leave. He surrendered to civilian police after his third absence without leave and he was arrested during his fourth absence which led to the period of detention under consideration. It is clear therefore that the applicant could not fail to know the reasons for which he was arrested by the civilian police in November 1994 ( mutatis mutandis , No. 8916/80, Dec. 7.10.80, D.R. 21, p. 250).

92. Moreover, it is noted that the applicant raised three matters relating to his pre-trial detention before the High Court. In the first place, he submitted that detention was difficult to cope with because of his alleged psychiatric condition. However, the Commission notes that the applicant does not submit that his detention was unlawful in domestic law because of his alleged condition and observes that, other than a brief reference in the applicant's affidavit, the matter was not pursued before the High Court in the remaining two affidavits filed on his behalf. In any event, the Commission recalls that Article 5 para. 4 does not guarantee a remedy relating to the appropriateness of the conditions of detention (Eur. Court HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 23, para. 52). Secondly, and as to the length of his pre-trial detention, the High Court enquired into the period of time which had elapsed since the applicant's arrest and the court had the power to order release if it was considered necessary (Re Mackle , reported in The Independent of 26.2.1993). Thirdly, it is also clear that the High Court dealt in detail with the applicant's submissions contesting the timely completion of, and reasons contained in, the 72 day delay report.

93. As to the applicant's general submission that, whatever complaints he made in the proceedings, habeas corpus proceedings could not, in any event, have led to a consideration of the "merits" of his detention, the Commission observes that habeas corpus proceedings are available to persons in military custody. It also notes that in any such proceedings the court will examine the legal validity of the accused's detention and whether there is sufficient evidence to detain him; and, if the power to detain depends upon the prior establishment of an objective fact, the court will decide whether the fact exists. An order for detention also can be quashed if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose.

94. The Commission notes that the applicant has not specified any grounds, other than the three considered above, upon which he would have wished to challenge his continued detention but was unable to do so. In this regard, the Commission observes that the High Court stated that, having regard to the applicant's history of absenting himself from his unit, the reason given for his continued detention (to prevent the applicant from absconding) was "perfectly understandable". In such circumstances, the Commission does not consider that the applicant has demonstrated that the scope of the habeas corpus proceedings was in his case insufficient to meet the requirements of Article 5 para. 4 of the Convention.

95. As to the burden of proof in habeas corpus proceedings, the Commission notes that once a detainee makes out a prima facie case that detention is unlawful, the burden of proof then passes to the detaining authority to show that detention is lawful. The standard of proof required of the detaining authority is the civil standard but a high degree of probability will be required. The Commission does not consider that such a burden of proof is incompatible with Article 5 para. 4 of the Convention ( mutatis mutandis , No. 9174/80, Comm. Report 11.10.83, D.R. 40, p. 42, at p. 58).

96. As to legal representation for habeas corpus proceedings, the applicant submits that the only reason he was legally represented in those proceedings was because he obtained military legal aid once remanded for court-martial and because his court-martial solicitor also took on without charge the civilian habeas corpus proceedings. However, it is apparent from the court-martial transcript that the applicant was legally represented by another solicitor prior to Christmas 1994 until mid-January 1995. The Commission further observes that legal aid was also available to the applicant (including on an emergency basis) from the civilian authorities for habeas corpus proceedings but the applicant did not apply for it. As to the financial conditions which would have applied, the Commission considers that it is reasonable to impose such conditions on the availability of legal aid in the context of proceedings to determine the lawfulness of detention ( mutatis mutandis , No. 10594/83, Dec. 14.7.87, D.R. 52, p. 158) and the applicant has not shown that the financial conditions of the civil legal aid system in the United Kingdom constituted an unreasonable limitation on his access to such proceedings.

97. Finally, the Commission notes that, while an accused does not normally receive copies of the delay reports, an accused can foresee from the relevant rules when each of those delay reports should be completed and by whom. Although it cannot be excluded that this could in certain circumstances lead to an unacceptable impediment to Article 5 para. 4 proceedings, the Commission notes that the applicant obtained the relevant reports on request for the purposes of his habeas corpus proceedings. As regards the time it took the military authorities to furnish those reports, it is noted that the applicant's solicitor's letter of 14 February 1995 did not specify a time-limit nor a date when it was envisaged that the motion for a writ of habeas corpus would be filed.

98. In these circumstances, the Commission does not consider that the habeas corpus proceedings were insufficient to satisfy the requirements of Article 5 para. 4 of the Convention. Accordingly, the Commission does not consider it necessary to examine whether the other procedures to which the Government refer - under section 181 of the 1955 Act or and under paragraph 6.007 of the Queen's Regulations - would also satisfy the requirements of Article 5 para. 4 of the Convention.

CONCLUSION

99. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 4 of the Convention.

E. As regards Article 5 para. 5 of the Convention

100. Article 5 para. 5 of the Convention reads as follows:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

101. The applicant invokes Article 5 para. 5 of the Convention as regards his complaints under paragraphs 3 and 4 of Article 5. The Government accept that any breach of Article 5 para. 3 of the Convention would not give rise to a domestic remedy. They consider, however, that the action for false imprisonment would afford an enforceable right to compensation for any breach of Article 5 para. 4 of the Convention. The applicant argues that the domestic remedy of false imprisonment based on detention which was in breach of the Convention does not lie in domestic law.

102. In view of its finding of a violation of Article 5 para. 3 of the Convention and in the absence of a right to compensation in domestic law, the Commission considers that there has also been a violation of Article 5 para. 5 of the Convention in this respect. Since, however, the Commission has found no breach of Article 5 para. 4 of the Convention, the applicant has no right to compensation under Article 5 para. 5 of the Convention in that respect (see, for example, No. 10801/84, Dec. 3.10.88, D.R. 61, p. 62).

CONCLUSION

103. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention.

F. As regards Article 13 of the Convention

104. Article 13, insofar as relevant, 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 ..."

105. The applicant complains under Article 13 that he did not have an effective domestic remedy as regards his complaints about his pre-trial detention. However, the Commission considers that in view of the finding that there was no violation of Article 5 para. 4 in the present case, it is not necessary to inquire whether the less strict requirements of Article 13 of the Convention were complied with (Eur. Court HR, Brogan and Others judgment, loc. cit., p. 36, para. 68).

CONCLUSION

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

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

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

"1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."

108. Apart from the observations specifically requested as regards the "public" nature of the court-martial hearing (outlined below), the Government have no observations on the applicant's complaints under Article 6 para. 1 of the Convention.

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

109. The Commission notes the nature of the charge of which the applicant was found guilty and, in particular, the penalty imposed, which included eight months detention. Accordingly, the Commission considers that the proceedings involved the determination of a "criminal charge" within the meaning of Article 6 para. 1 of the Convention (Eur. Court HR, Garyfallou AEBE v. Greece judgment of 24 September 1997, to be published in Reports of Judgments and Decisions 1997, paras. 32-33, with further references).

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

110. The main complaint of the applicant under Article 6 para. 1 is that the court-martial was neither independent nor impartial within the meaning of Article 6 para. 1 of the Convention chiefly because of the role of the Convening Officer. In particular, he points to that officer's connection with the members of the court-martial and with the prosecution of the case.

111. The Commission recalls that, in the Findlay judgment (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I), the Court found that a general court-martial convened pursuant to the 1955 Act 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 major role 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 found it significant that the Convening Officer also acted as Confirming Officer.

112. 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, to be published in Reports of Judgments and Decisions 1997). 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.

113. The Commission observes that in the present case a district army court-martial was convened pursuant to the 1955 Act to try the applicant on the charge. The Commission is of the view that there were no significant differences between the part played by the Convening Officer in the organisation of the applicant's court-martial, on the one hand, and of the courts-martial of Mr Coyne or Mr Findlay, on the other. 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 a charge 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 including an appeal to the CMAC.

114. 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.

115. 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

116. 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 "public" nature of the court-martial hearing

117. The applicant also submits that the hearing was not public within the meaning of Article 6 para. 1 alleging that those who attended the court-martial had to record their names and addresses in a book.

118. The Government point out that for security reasons any person  visiting a military installation for whatever reason (apart from those persons carrying Ministry of Defence passes) is required to "book-in" at the guardroom giving his/her name and address. In addition, a further record is compiled at the entrance to the building which houses the court-martial but this is for security and safety reasons and for practical reasons including foreseeing those eligible for rations. While the guardroom list is preserved and has been submitted by the Government, there is no requirement to keep the second list beyond the day to which it relates.

119. The Commission recalls that the object pursued by the publicity requirement in Article 6 para. 1 is to ensure scrutiny of the judicial process by the public with a view to safeguarding the right to a fair trial and that security reasons can justify the exclusion of the public from proceedings (Eur. Court HR, Pretto v. Italy judgment of 8 December 1983, Series A no. 71, p. 13, para. 27 and Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 42, paras. 87-88).

120. The Commission notes that courts-martial are open, that members of the press and public are permitted to attend a court-martial and that trial listings are required to be posted beforehand in a place accessible to the public. The Commission does not find that the reporting requirements outlined by the Government would amount to a general deterrent to the public and press from attending a court-martial. Even assuming that certain members of the armed forces may thereby be deterred from attending court-martial proceedings, the Commission considers that the reasonable security and safety concerns to which the Government refer constitute sufficient reasons justifying any such restriction on the publicity requirement of Article 6 para. 1 of the Convention (see, for example, No. 17265/90, Dec. 21.10.93, D.R. 75, p. 76, at p. 125).

CONCLUSION

121. The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 of the Convention as regards the "public" nature of the hearing before the court-martial.

(d) Remaining points at issue

122. The applicant also makes specific complaints of the unfairness of the court-martial proceedings under Article 6 para. 1 of the Convention. He complains that he was denied a trial by jury and that he had no right to an appeal only against sentence to the CMAC. He submits that he was deceived into submitting his written statement and a statement from his girlfriend; that those statements were then relied upon by the court-martial; that the assistant defending officer was appointed by the prosecution; and that the Commanding Officer and the prosecution tried to undermine his confidence in his lawyer and to persuade him to plead guilty. He also submits that his solicitor had no option but to wait until the grant of legal aid (for which he could not apply until after he had been remanded for court-martial) before undertaking the costs involved in obtaining a psychiatric report.

123. In addition, the applicant complains, invoking Article 6 para. 3 of the Convention, that he was not given the opportunity to have legal representation at the important stages of service of the abstract of evidence and remand for court-martial. He further complains about his defending officer's alleged conflict of interest in light of that officer's position in the army and about the introduction into evidence of his girlfriend's statement.

124. The applicant further complains that the court-martial was not "established by law" because of the convening of the court martial in an ad hoc manner, the way in which the Convening Officer and Reviewing Authorities are appointed and the "insubstantial" nature of the court-martial system which could not, for example, produce a record of the applicant's detention.

125. The Government submit that legal aid is available from the military authorities after remand for court-martial. The Government further submit that the financial assessments carried out in that context mirror those in the civil legal aid scheme available from the civilian authorities with one exception - the military scheme requires an initial lump sum payment towards his legal costs (which can be re-assessed after the court-martial) whereas the civilian scheme requires weekly payments towards legal costs.

126. While the applicant invokes Article 6 para. 3 as regards certain complaints, the Commission observes that the requirements of paragraph 3 of Article 6 represent particular elements of the concept of a fair hearing set forth in Article 6 para. 1 (see, for example, Eur. Court HR, Lala v. the Netherlands judgment of 22 September 1994, Series A no. 297-A, p. 12, para. 26). Accordingly, in view of its conclusion above as regards the fairness aspect of Article 6 para. 1, the Commission considers that it is unnecessary in the circumstances of the present case to examine further these complaints of the applicant.

CONCLUSION

127. The Commission concludes, unanimously, that in the present case it is not necessary to examine the complaints that the court-martial was not "established by law" and that in other specific respects the proceedings did not comply with the requirement of fairness in Article 6 para. 1 of the Convention.

H. Recapitulation

128. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 85).

129. The Commission concludes, unanimously, that in the present case there has been no violation of Article 5 para. 4 of the Convention (para. 99).

130. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention (para. 103).

131. The Commission concludes, unanimously, that in the present case it is not necessary to consider the applicant's complaint under Article 13 of the Convention (para. 106).

132. 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. 116).

133. The Commission concludes, unanimously, that in the present case there has been no violation of Article 6 para. 1 of the Convention as regards the "public" nature of the hearing before the court-martial (para. 121).

134. The Commission concludes, unanimously, that in the present case it is not necessary to examine the complaints that the court-martial was not "established by law" and that in other specific respects the proceedings did not comply with the requirement of fairness in Article 6 para. 1 of the Convention (para. 127).

        M. de SALVIA                                                                S. TRECHSEL

         Secretary                                                                              President

      to the Commission                                                          of the Commission