EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 25942/94

                      Paul Matthew Coyne

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                   (adopted on 25 June 1996)

                       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. 16-58) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 16-27). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law and practice

          (paras. 28-58). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

     (paras. 59-92) . . . . . . . . . . . . . . . . . . . . 11

     A.   Complaints declared admissible

          (para. 59). . . . . . . . . . . . . . . . . . . . 11

     B.   Point at issue

          (para. 60). . . . . . . . . . . . . . . . . . . . 11

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

          (paras. 61-90). . . . . . . . . . . . . . . . . . 11

          1.   Applicability

               (para. 62) . . . . . . . . . . . . . . . . . 11

          2.   Independence and impartiality

               (paras. 63-86) . . . . . . . . . . . . . . . 11

               CONCLUSION

               (para. 87) . . . . . . . . . . . . . . . . . 16

          3.   Remaining points at issue

               (paras. 88-89) . . . . . . . . . . . . . . . 16

               CONCLUSION

               (para. 90) . . . . . . . . . . . . . . . . . 16

     D.   Recapitulation

          (para. 91-92) . . . . . . . . . . . . . . . . . . 16

APPENDIX :     DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 17

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 1972 and resident in

Bedford. He was represented before the Commission by Gilbert Blades,

a solicitor practising in London.

3.   The application is directed against the United Kingdom. The

respondent Government were represented by John Rankin and,

subsequently, Susan Dickson, both Agents, Foreign and Commonwealth

Office.

4.   The case mainly concerns the independence and impartiality of a

court-martial together with the fairness of proceedings before that

body. The applicant invokes Article 6 para. 1 of the Convention.

B.   The proceedings

5.   The application was introduced on 23 November 1994 and was

registered on 14 December 1994.

6.   On 28 February 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on the admissibility and

merits of the applicant's complaints under Article 6 para. 1 of the

Convention.

7.   The Government's observations were submitted on 20 June 1995

after two extensions of the time-limit fixed for this purpose. The

applicant replied under cover of letter dated 11 August 1995.

8.   Having transferred the matter to the Plenary Commission on 13

September 1995, the Commission declared admissible the applicant's

complaints under Article 6 para. 1 of the Convention on 28 November

1995. It also declared inadmissible the remainder of the application.

9.   The text of the Commission's decision on admissibility was sent

to the parties on 6 December 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

Government submitted observations on 31 January 1996.

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 upon 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

               H. DANELIUS

               C.L. ROZAKIS

               E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H.G. SCHERMERS

          Mrs. G.H. THUNE

          Mr.  F. MARTINEZ

          Mrs. J. LIDDY

          MM.  J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               G.B. REFFI

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

12.  The text of this Report was adopted on 25 June 1996 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 Air Force of the United Kingdom

in 1990 and by 1992 he was a non-commissioned officer stationed at

Brüggen, Germany.

17.  In June 1992 the applicant applied for premature voluntary

release and this was granted in July 1992 subject to payment. In

November 1992 he returned to the United Kingdom with a view to his

final discharge on 9 December 1992.

18.  As a result of a police investigation into the applicant's

financial activities while in Germany, his final release was turned

down. Having been initially detained by the air force authorities in

the United Kingdom, he was returned to Brüggen in June 1993.

19.  The air force authorities concluded that the applicant should be

tried by a court-martial of the Royal Air Force.

20.  In August 1993 the applicant was charged, pursuant to section

70(1) of the Air Force Act 1955, with four civilian criminal offences

(the second and fourth charges being expressed as alternatives to the

first and third charges) of using a false instrument together with

obtaining services by deception contrary to the Forgery and

Counterfeiting Act 1981 and the Theft Act 1968.

21.  The Convening Officer was the Air Officer Commanding No. 2 Group,

Royal Air Force, Rheindahlen and as such was the senior commander of

all air force personnel serving in Germany (including approximately

1000 officers). On 26 January 1994 the Convening Officer convened a

district court-martial, appointing all members of the court-martial by

name. The members of the court-martial were as follows:

-    The President was a Wing Commander of the Royal Air Force

     Station, Uxbridge. He was a permanent president and subordinate

     in rank to the Convening Officer.

-    Member 2 was a Squadron Leader of the Royal Air Force Station,

     Laarbruch. He was stationed in Germany, was subordinate in rank

     to, and within the chain of command of, the Convening Officer.

-    Member 3 was a Flight Lieutenant of the Royal Air Force Station,

     Gatow. He was also stationed in Germany, was subordinate in rank

     to, and within the chain of command of, the Convening Officer.

22.  The Prosecuting Officer was appointed by the Convening Officer

from the Directorate of Legal Services and was also within the

Convening Officer's chain of command. A Judge Advocate was appointed

by the Judge Advocate General's office.

23.  The court-martial took place at the Royal Air Force Station,

Brüggen on 26-28 January 1994. The applicant was found not guilty of

the first and second charge, guilty of the third charge (under the

Forgery and Counterfeiting Act 1981) and consequently no finding was

made on the fourth charge. He was sentenced to nine months detention,

dismissal from the air force and to be reduced to the ranks. 24.  On 31 January 1994 the applicant presented a petition to the

Confirming Officer (against conviction and sentence) claiming that the

Judge Advocate had erred in his summing up of the case, that the

finding of guilt on one charge was inconsistent with his acquittal on

another charge and that the sentence was excessive. However, on 7 March

1994 the applicant's conviction and sentence were confirmed by the

Confirming Officer who had obtained the advice of a Judge Advocate (not

the trial Judge Advocate).

25.  On 8 March 1994 the applicant presented an appeal petition

(against conviction and sentence) to the Defence Council. The Air Force

Board took the decision on this petition (having obtained the advice

of the Judge Advocate General) and informed the applicant's legal

representative of its decision to reject this latter petition by letter

dated 26 May 1994.

26.  The applicant's subsequent application for leave to appeal

against conviction and sentence to the Courts-Martial Appeal Court was

accepted by a single judge of that court, not on the basis of any of

the grounds presented by the applicant, but on the basis of a question

raised by the single judge as to whether the Judge Advocate had

properly advised the court-martial as to what was required to be proven

in relation to an instrument being false. By judgment dated 11 October

1994 the applicant's appeal to the Courts-Martial Appeal Court was

rejected, that court finding that the Judge Advocate had properly

advised the court-martial.

27.  No reasons were given for the decisions of the court-martial, the

Confirming Officer or the Air Force Board. The applicant was legally

represented before the Courts-Martial Appeal Court.

B.   Relevant domestic law and practice

                            General

28.  The law and procedures in respect of courts-martial for air force

personnel are contained, inter alia, in the Air Force Act 1955 ("the

1955 Act") and in the Rules of Procedure (Air Force) 1972.

29.  Under section 70(1) of the 1955 Act "civilian" offences are also

offences under the 1955 Act. Therefore air force personnel can be tried

on charges of civilian criminal offences under air force law and by the

air force authorities. Jurisdiction issues between the United Kingdom

air force authorities and the German authorities, in matters concerning

servicemen stationed in Germany, are governed by the North Atlantic

Treaty Organisation Status of Forces Agreement 1951. Though the German

and United Kingdom authorities have concurrent jurisdiction in such

matters, in practice the German authorities waive jurisdiction.

30.  Depending on their gravity, charges against air force law can be

tried by a general, field or district court-martial convened by the

Convening Officer. There is no such thing as a standing court-martial;

each court-martial is created for a particular trial. A district court-

martial must consist of a President (who must not be under the rank of

Flight Lieutenant) and not less than two other officers (each of whom

must have had at least two years commissioned service).

31.  The President of the court-martial must be appointed by name by

the Convening Officer and is normally one of a number of permanent

Presidents who are detailed full-time to preside over courts-martial.

In a district court-martial the President is normally superior in rank

to the other members of that court-martial. The Convening Officer may

appoint the remaining members by name or by requiring a commanding

officer to nominate an officer of the required rank. A Judge Advocate

may also be assigned to a district court-martial, though not as a

member.

32.  Each member of a court-martial must swear the following oath:

     "I swear by almighty God that I will well and truly try the

     accused before the court according to the evidence, and that I

     will duly administer justice according to the Air Force Act 1955,

     without partiality, favour or affection, and I do further swear

     that I will not on any account at any time whatsoever disclose

     or discover the vote or opinion of the president or any member

     of this court-martial, unless thereunto required in the due

     course of law."

                     The Convening Officer

33.  The Convening Officer of a district court-martial must be a

"Qualified Officer" or an officer (not below the rank of Flight

Lieutenant) to whom the Qualified Officer has delegated his powers. A

Qualified Officer is any officer not below the rank of Squadron Leader

or corresponding rank who is in command of a body of the regular air

forces or of the command within which a body of the regular air force

is serving.

34.  The Convening Officer is not responsible for the decision to

charge the accused nor for the investigation of those charges. However,

once the accused's commanding officer has decided that the accused

should be tried by court-martial, the Convening Officer assumes

responsibility for the case.

35.  The Convening Officer is empowered, inter alia, to direct upon

what charges the accused is to be tried, to decide the wording of those

charges, to decide in what order the accused is to be tried on those

charges and to ensure that the accused has been remanded for trial on

those charges. The Convening Officer convenes a court-martial for each

case and decides on the type of court-martial required. The convening

order specifies, inter alia, the date, place and time of the trial, the

name of the President, the details of the other members and whether a

Judge Advocate has been appointed. In this latter respect, if the Judge

Advocate General does not assign a Judge Advocate to a district court-

martial, a Judge Advocate may be assigned by the Convening Officer

himself (though the exercise of this latter power is unusual). The

Convening Officer also appoints the Prosecuting Officer or directs a

commanding officer to make this appointment. The Prosecuting Officer

must be an officer subject to air force law or counsel assisted by such

an officer. The Prosecuting Officer is invariably chosen from the staff

of the Directorate of Legal Services (Air Force), will be a barrister

or solicitor and is answerable to the Director of Legal Services (Air

Force).

36.  The Convening Officer sends the charge sheet and convening order

to the President and copies of these documents to the members of the

court-martial, the Prosecuting Officer and to the Judge Advocate. He

also sends a summary abstract of the evidence to the Prosecuting

Officer and to the Judge Advocate and may indicate to the Prosecuting

Officer the passages of the evidence which may be inadmissible. He

procures the attendance at trial of all witnesses to be called for the

prosecution. When charges are withdrawn the Convening Officer's consent

is normally obtained, though it is not necessary in all cases, and when

a plea to a lesser charge is made by the accused it cannot be accepted

without the consent of the Convening Officer. The Convening Officer

normally takes advice from the Directorate of Legal Services in this

latter respect.

37.  The Convening Officer must also ensure that the accused has a

proper opportunity to prepare his defence and proper contact with,

inter alia, the defence witnesses. The Convening Officer must see that

the accused is informed that he may require the attendance of defence

witnesses and must order the attendance of witnesses "reasonably"

requested by the defence. Witnesses not subject to military law may be

summoned to attend the trial by order of the Convening Officer. The

accused must also be informed by the Convening Officer whether the

Prosecuting Officer is legally qualified so as to allow the accused the

opportunity to obtain his own legal representation. At least 24 hours

before the trial the Convening Officer must send the accused a copy of,

inter alia, the convening order, the charge sheet and the abstract of

the evidence.

38.  A court-martial can be dissolved by the Convening Officer, either

before or during the trial, when required in the interests of the

administration of justice (section 95 of the 1955 Act).

     The Convening Officer also usually acts as Confirming Officer.

          Judge Advocate General and Judge Advocates

39.  The current Judge Advocate General was appointed by the Queen in

February 1991 for five years. He is answerable to the Queen and is

removable from office by the Queen for inability or misbehaviour.

40.  The Judge Advocate General's role is mainly advisory. He advises

the Secretary of State for Defence on all matters touching and

concerning the office of the Judge Advocate General and this advice

includes advice on air force law and the procedures and conduct of the

court-martial system. He also advises the confirming and reviewing

authorities on post-trial matters and in this respect he may, if

necessary, give some general information as to the purpose and function

of the review, the lawfulness of a particular finding or sentence, the

range of sentences appropriate to a particular offence based on

precedent, as to how the Crown Court might consider a similar offence

and as to specific service aspects of the offence. He is also

responsible for superintending the administration of air force law and

retaining the records of courts-martial. He is a legal adviser to the

Ministry of Defence and the relationship between the Judge Advocate

General and the Ministry of Defence can be described as one of lawyer

and client.

41.  A number of assistant and deputy Judge Advocates are appointed

to the Judge Advocate General's office by the Lord Chancellor and they

must have at least seven and five years experience respectively as an

advocate or barrister. The Judge Advocate does not swear an oath upon

appointment and is normally exempted from doing so at an individual

court-martial. The Judge Advocate is removable only by the Lord

Chancellor for inability or misbehaviour but is responsible for the

proper discharge of his functions to the Judge Advocate General. The

Judge Advocate General and Judge Advocates receive, out of money

provided by parliament, such salaries together with travelling and

subsistence allowances as the Lord Chancellor may determine.

42.  Once assigned to a court-martial, the Judge Advocate must provide

on request an opinion on any point of law or procedure to the

prosecution and the accused prior to the court-martial hearing. During

the hearing, with the consent of the court-martial, he must provide any

opinion so requested. He advises on all questions of law and procedure

that arise during the hearing and the court-martial must accept his

advice unless it has weighty reasons (which must be recorded) for not

doing so. On a number of specified matters, on which he is consulted

by the court-martial, the opinion of the Judge Advocate must be

followed. The Judge Advocate is also responsible for advising the

court-martial as to any defect in its constitution or in the charge

sheet.

43.  At the opening of the trial it is the practice for the Judge

Advocate to satisfy himself that none of the members of the court-

martial either know the accused or have heard anything about the

charges. Where an accused pleads guilty the Judge Advocate has

particular duties including satisfying the court-martial that the

accused and his representative are not under any misapprehension as to

the plea of guilty and that the accused's clear admission has addressed

all elements of the charges. At the close of the court-martial hearing

the Judge Advocate sums up the relevant law and evidence. If during the

court-martial's deliberations on the charges (at which the Judge

Advocate cannot be present) further advice is required then the court-

martial must receive that advice in open court. The Judge Advocate can,

however, advise the members of the court-martial in private on the

general principles governing the approach to sentencing. The Judge

Advocate is not a member of the court-martial and has no vote either

on the decision on the charges or on the sentence.

44.  Finally, the Judge Advocate must ensure (in conjunction with the

President) that the accused does not suffer any disadvantage during the

hearing.

                   The court-martial hearing

45.  At the commencement of the court-martial the accused can object

to individual members of the court-martial and such an objection is

considered in closed court.

46.  The accused is then asked to plead in respect of the charge. Once

a plea of not guilty is entered the procedure is very similar to that

followed in the Crown Court. After the prosecution has made its case

the accused can submit that there is no case to answer. If this

submission is not accepted then the Judge Advocate advises the accused

on the alternatives open to him and the defence case proceeds.

Witnesses can be called for the prosecution and the defence and both

sides can make a closing submission, the defence submission being the

last. During the trial the court-martial may adjourn to consult the

Convening Officer on points of law who must then take legal advice from

the Judge Advocate General.

47.  The members of the court-martial retire (without the Judge

Advocate) to deliberate on their findings, return and pronounce those

findings. The votes and opinions of the court-martial, including

whether there was a majority decision, are private - the members being

bound by oath not to disclose such votes and opinions. If the accused

is found guilty or pleads guilty, the Prosecuting Officer puts in

evidence the defendant's service record and other evidence having a

bearing on the sentence to be imposed. The defence then makes a plea

in mitigation and can call witnesses to support this plea. The members

of the court-martial then retire (this time with the Judge Advocate)

to consider the sentence. The sentence is then announced in open court.

There is no provision for the giving of reasons by the court-martial

for its decision on the charges or on the sentence.

                          Sentencing

48.  Certain types of sentences are not available to a court-martial

even if the charges relate to civilian offences. A court-martial

cannot, inter alia, suspend a prison sentence, issue a probation order

or sentence to community service. In addition, a district court-martial

cannot order imprisonment for more than two years. A court-martial must

award one global sentence for all of the offences for which the accused

is found guilty. The opinions of members on sentence are given orally

in closed court and these opinions shall be given in ascending order

of seniority. A decision can be reached by majority.

             Confirmation and post-hearing reviews

49.  The court-martial's findings are not treated as a finding of

guilt or on sentence until confirmed by the Confirming Officer. The

confirmation procedure is automatic but if a petition is presented

prior to the decision of the Confirming Officer it will be considered.

Prior to confirmation the Confirming Officer invariably consults the

Judge Advocate General's office for advice but the Judge Advocate who

attended the court-martial hearing does not proffer this advice. The

Confirming Officer can withhold confirmation, substitute a sentence,

remit in whole or in part any punishment, commute a punishment for one

or more lesser punishments and postpone the carrying out of the

sentence. Once confirmed, the conviction and sentence are then

promulgated.

50.  If the conviction and sentence have been confirmed, and if the

accused wishes to leave open the option of an appeal to the Courts-

Martial Appeal Court, he may present an appeal petition against

conviction and sentence. The Reviewing Authority which normally decides

upon appeal petitions of air force personnel is the Air Force Board

which has the power to quash a sentence and to exercise the same powers

as the Confirming Officer in relation to substituting and remitting or

commuting sentences.

51.  A petitioner is not informed, when making the relevant petition,

of the identity of the Confirming Officer or of the Reviewing Authority

considering his case nor is he told when such consideration will take

place. No statutory or formalised procedures are laid down for the

conduct of the procedures before the Confirming Officer and the

Reviewing Authority and no reasons are given for the ensuing decisions.

Neither the fact that advice has been received nor the nature of the

advice received from the Judge Advocate General's office by the

Confirming Officer or the Reviewing Authority is disclosed to the

petitioner.

             Courts-Martial Appeal Court ("CMAC")

52.  The 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. 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.

53.  If an appeal petition is rejected by the Air Force Board an

appellant may apply to a single judge of the CMAC (and, if necessary,

also to the full court) for leave to appeal against conviction to that

court. There is no provision for an appeal (by air force personnel)

against sentence only although certain powers of revising such

sentences, pursuant to an appeal against conviction, are available to

the CMAC.

54.  In considering the question of leave to appeal, the single judge

or the CMAC shall have regard to any expression of opinion made by the

Judge Advocate General that the case is a fit one for appeal and if any

such opinion is so given may, without further consideration, give leave

to appeal. The Judge Advocate General can also refer a matter to this

court if he is of the opinion that the finding involves a matter of

exceptional public importance.

55.  The hearing of the substantive appeal does not constitute a full

rehearing on all points of fact and law. However, the CMAC can consider

any question necessary to be determined for the purpose of doing

justice in any case and may authorise a new trial by court-martial

where a conviction is quashed in light of fresh evidence. It also has

power, inter alia, to order the production of documents or exhibits

connected with the proceedings, order the attendance of witnesses,

receive evidence, obtain reports from members of the court-martial or

from the Judge Advocate and order a reference of any question to a

special commissioner for inquiry. The CMAC must exercise all such

powers as it thinks necessary or expedient in the interests of justice.

56.  The CMAC must allow the appeal against conviction if it considers

that the finding of the court-martial is, under all the circumstances

of the case, unsafe or unsatisfactory or involves a wrong decision on

a question of law. The appeal must also be allowed if there was a

material irregularity in the course of the trial. In any other case the

CMAC must dismiss the appeal.

57.  An appellant must have the leave of the CMAC to attend any

hearing in relation to the appeal before that court. The CMAC will only

give the appellant such leave where it considers that his presence will

serve some useful purpose or is necessary in the interests of justice.

Legal aid for an appeal to the CMAC is available under certain

conditions and the appellant may obtain an order for costs in his

favour if his appeal is allowed by the CMAC.

58.  A further appeal, on a point of law of general public importance,

can be made to the House of Lords with the leave of the CMAC or of the

House of Lords itself.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

59.  The Commission has declared admissible the applicant's complaints

that he did not receive a fair hearing before an independent and

impartial tribunal established by law.

B.   Point at issue

60.  Accordingly, the point at issue in the present case is whether

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention in respect of the applicant's trial by court-martial.

C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

61.  Article 6 para. 1 (Art. 6-1) 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. ..."

1.   Applicability

62.  The Commission notes that it is not disputed that the proceedings

against the applicant involved the determination of criminal charges

against him within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. The Commission considers, having regard to the

classification of the charges against the applicant in domestic law

(the Theft Act 1978 together with the Forgery and Counterfeiting Act

1981), the nature of the offence (obtaining services by deception and

using a false instrument) together with the nature and severity of the

penalty (including nine months detention), that the proceedings before

the court-martial concerned the determination of criminal charges

against the applicant within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (see, for example, No. 13877/88, Dec.

17.5.90, D.R. 65 p. 279).

2.   Independence and impartiality

63.  The applicant mainly complains that the court-martial did not

constitute an independent and impartial tribunal and submits that he

does not need to demonstrate an actual lack of independence and

impartiality but rather that a reasonable person would perceive this

to be the case.

64.  As regards the alleged lack of independence, the applicant

refers, inter alia, to the rank and wide powers of the Convening

Officer. He claims that the Convening Officer controls court-martial

proceedings through the Prosecuting Officer. He further submits that

the members of the court-martial and the Prosecuting Officer depend on

the convening authority for promotions, re-engagements and salary

increases so that the members of the court-martial and the Prosecuting

Officer will have their careers in mind when carrying out their

functions. He notes, in this respect, that there are no members of the

judiciary appointed to a court-martial. The applicant further argues

that the manner of convening and proceeding with a court-martial,

together with the identity of those involved in the court-martial,

establishes a close connection and institutional dependence between the

air force authorities and the accused's commanding officer, the

Convening Officer, the members of the court-martial, the Prosecuting

Officer and the Judge Advocate.

65.  As to the question of impartiality, the applicant submits that

the court-martial did not present an appearance of impartiality due,

inter alia, to the manner in which its members were appointed, the

duration of their terms of office, the lack of guarantees against

outside pressures and the rank of those involved in the court-martial.

66.  The Government emphasise at the outset that a person joining the

air force chooses to put himself under a discipline which is different

from civilian life and that this discipline is vital to the proper

functioning of the air force. Accordingly, a system of military law,

which allows for the punishment of military and civilian offences, is

also vital since both types of offence can engender indiscipline.

67.  As regards the independence of the court-martial, the Government

submit that the military identity and subordinate rank (to the

Convening Officer) of the members of the court-martial do not mean that

the court-martial lacks independence. The Government point to the oath

sworn by the members, to the lack of instruction by, or accountability

to, a higher or outside authority and to the inability of any such

authority to remove individual members of the court-martial. In

addition, it is submitted that the convening of a court-martial on an

ad hoc basis and the role of the Judge Advocate, being independent of

the parties to the case, enhance the independence of the court-martial.

68.  The Government refute as completely unfounded the allegation that

the Convening Officer has any control over the promotions, pay and

engagements of the court-martial members, such matters being the

responsibility of the Promotions Board and the Armed Forces Pay Review

Body, respectively. It is also denied that the Convening Officer can

be equated with the executive or the prosecuting authority or that he

controls the proceedings through the Prosecuting Officer. In addition,

though two members of the court-martial together with the Prosecuting

Officer were in the chain of command of the Convening Officer, it does

not follow that they were accountable to the Convening Officer - the

members of the court-martial, pursuant to their oath, were accountable

to no one and the Prosecuting Officer was answerable to the Director

of Legal Services. The President was not in the Convening Officer's

chain of command. Therefore, the Government strongly dispute that the

performance of a member or of the Prosecuting Officer at a court-

martial could affect their future evaluation by their superiors and

that any member of the court-martial or the Prosecuting Officer would

have career matters in mind when carrying out their functions on the

court-martial.

69.  As regards the subjective impartiality of the members of the

court-martial, the Government submit that the applicant's allegations

in this respect are speculative and unfounded. In addition, the

Government submit that the members, sitting as they do as individuals

and reaching their conclusions independently of outside pressure or

influence, satisfy the objective test of objective impartiality.

70.  The Commission accepts that the conferring on a military tribunal

of jurisdiction to determine criminal charges against a member of the

military does not, in principle, conflict with the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention. However, those

proceedings in their entirety must comply with the requirements of

Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Engel

and Others judgment of 8 June 1976, Series A no. 22, pp. 33-39, paras.

80-91 and, mutatis mutandis, Albert and Le Compte judgment of 28 May

1983, Series A no. 58, p. 16, para. 29).

71.  As regards the applicant's complaint as to the impartiality of

the members of the court-martial, the Commission recalls that for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention the

existence of impartiality must be determined according to a subjective

test, that is on the basis of a personal conviction of a particular

judge in a given case, the personal impartiality of a judge being

assumed until there is proof to the contrary (Eur. Court H.R., Padovani

judgment of 26 February 1993, Series A no. 257-B, p. 20, paras. 25-26).

72.  In addition, an objective test must also be applied, that is

ascertaining whether sufficient guarantees exist to exclude any

legitimate doubt in this respect. It must be determined whether there

were ascertainable facts, particularly of internal organisation, which

might raise doubts as to impartiality. In this respect, even

appearances may be important: what is at stake is the confidence which

the court must inspire in the accused in criminal proceedings and what

is decisive is whether the applicant's fear as to a lack of

impartiality can be regarded as objectively justifiable (Eur. Court

H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 14,

para. 26 and Padovani judgment, loc. cit., p. 20, paras. 25 and 27).

73.  In the present case the Commission does not consider that the

applicant has shown that the members of the court-martial or the Judge

Advocate were personally or subjectively biased against him. As to

whether the court-martial satisfies the objective test of impartiality,

the Commission recalls that this concept and that of independence are

frequently difficult to dissociate (Eur. Court H.R, Holm judgment of

25 November 1993, Series A. no. 279-A, p. 14, para. 30).

74.  Furthermore, the Commission also recalls that in certain cases

the link between the concepts of independence and objective

impartiality are such that if a tribunal fails to offer the requisite

guarantees of independence it will not satisfy the test for objective

impartiality (Demicoli v. Malta, Comm. Rep. 15.3.90, para. 42, Eur.

Court H.R., Series A no. 210, p. 27). The Commission considers that

such a link exists in the present case concerned as it is with the

structure and internal organisation of a court-martial.

75.  The Commission recalls the established criteria to which the Court

has regard in assessing the independence of tribunals, in particular

from the parties. These include, the manner of appointment of members,

the duration of their terms of office, the guarantees afforded by the

procedure against outside pressures and whether the body presents an

appearance of independence (see, for example, Eur. Court H.R. Le

Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no.

43, p. 24, para. 55 and Campbell and Fell judgment of 28 June 1984,

Series A no. 80, para. 78, p. 39-40).

76.   Finally, the Commission recalls that, in applying the above

principles of assessment to a general army court-martial in the United

Kingdom, the Commission found that the Convening Officer was seen to

be central to the prosecution of a case and that the applicant's fears,

that the court-martial lacked independence from the prosecuting

authority, could be regarded as objectively justified. In so finding,

the Commission had particular regard to certain structural and

organisational matters including the nature and extent of the Convening

Officer's roles, the composition of the court-martial, its ad hoc

nature and the limited role of the Judge Advocate. In that case, the

Commission concluded that the court-martial did not constitute an

independent tribunal, or consequently an impartial tribunal, within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention

(No. 22107/93, Findlay v. the United Kingdom, Comm. Report 5.9.95,

unpublished).

77.  The Commission notes that there are certain differences between

the system of an air force district court-martial in issue in the

present case and that of an army general court-martial which was

examined by the Commission in the Findlay case. The minimum number of

members of a district court-martial is three whereas a general court

martial has a minimum of five members. The appointment of a Judge

Advocate is not obligatory in a district court-martial whereas it is

so in a general court-martial, although the Commission observes that

a Judge Advocate was in fact appointed to the district court-martial

in the present case. Finally, the titles of the personnel involved in

army and air force courts-martial will obviously differ, though the

ranks of the members of the two forms of court-martial are not

materially different. The Commission does not consider that such

matters amount to a real structural or organisational difference

between the court-martial procedure at issue in the above-mentioned

Findlay application and that at issue in the present application.

78.  Equally, there exists no factual feature of the court-martial in

the present case which would, in the Commission's view, distinguish it

from that which was examined in the Findlay case. In particular, the

Commission notes that similar links existed in this case between the

members of the court-martial and the Convening Officer as in the

Findlay application, which links would appear to be inherent in the

very structure of the court-martial system. All members of the court-

martial were air force personnel and were appointed by name by the

Convening Officer. All were stationed in Germany and were subordinate

in rank to the Convening Officer who was the senior commander of all

personnel serving in Germany. The two members, other than the president

of the court-martial, were within the chain of command of the Convening

Officer. The Commission also notes that, although there is no evidence

in this case that the Convening Officer and the Confirming Officer were

the same person, as in the Findlay application the Confirming Officer

could effectively annul the decision of the court-martial in that the

court-martial findings and sentence have no effect until confirmation

by the Confirming Officer, which confirmation can be withheld.

79.  Accordingly and for the same reasons as outlined in the Findlay

application, the Commission considers that the Convening Officer is

seen to be central to the prosecution of the applicant's case and that

the applicant's fears that the court-martial lacked independence from

the prosecuting authority could be regarded as objectively justified.

Therefore, the Commission finds that the court-martial did not

constitute an independent tribunal, or consequently an impartial

tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

80.  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 (cf. Mitap and Müftüoglu

v. Turkey, Comm. Report 8.12.94, para. 109).

81.  The question arises whether the above deficiencies were remedied

in subsequent proceedings. In this regard, the Commission recalls that

the defects noted above in relation to the court-martial proceedings

(namely, a lack of independence, impartiality and fairness), could only

have been remedied by a rehearing of the charges by a tribunal

complying with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention, with jurisdiction to consider all matters of fact and law

in the case (see, inter alia and mutatis mutandis, Eur. Court H.R., Le

Compte, Van Leuven and Meyere judgment, loc.. cit, pp. 22-23, paras.

50-51, Albert and Le Compte judgment, loc. cit., De Cubber judgment,

loc. cit., p. 19, para. 33 and Belilos judgment of 29 April 1988,

Series A no. 132, pp. 30-32, paras. 68-73).

82.  The Commission considers that the procedures before the

Confirming Officer and the Reviewing Authority clearly could not remedy

the deficiencies and the Government do not contend that they could do

so. The Confirming Officer was an air force officer and the Reviewing

Authority consisted of air force officers fulfilling their duties as

delegates of the Air Force Board. The secrecy which surrounds the

proceedings before those bodies (including the fact and nature of the

advice given by the Judge Advocate General's office) and the

applicant's inability to participate in those reviews in any meaningful

manner demonstrates the lack of effectiveness of the reviews in

remedying the deficiencies in the earlier proceedings.

83.  However, in contrast to the Findlay case where no such appeal

lay, the present applicant was able to appeal to the CMAC and the

question arises as to whether this appeal procedure remedied the

deficiencies in the prior procedures.

84.  The applicant submits that, since there is no right of appeal to

the CMAC against sentence only and since that court could not entirely

rehear his case, it could not remedy the defects in the prior

proceedings. The Government submit that it is the task of the

Commission to assess the proceedings as a whole and note that the

applicant does not, and could not, challenge the independence and

impartiality of the judges of the CMAC. In addition, the Government

submit that that court could have remedied any earlier defects if the

applicant had raised them before that court.

85.  The Commission notes that the independence and impartiality of

the CMAC is not in dispute and that the applicant does not argue that

the proceedings before that court were unfair. However, the Commission

also notes that, whether or not the applicant raised issues as to the

defects in the prior proceedings before the CMAC, that court did not

and could not provide a full rehearing on all issues of fact and law

arising out of the initial charges against the applicant. The CMAC has

certain powers as regards, for example, the calling of witnesses and

receiving evidence but any rehearing ordered would have taken place

before a court-martial.

86.  Accordingly, the Commission considers that the CMAC could not and

did not remedy the defects in the prior proceedings.

     CONCLUSION

87.   The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant did not receive a fair hearing before an independent and

impartial tribunal.

3.   Remaining points at issue

88.  The applicant has raised further specific submissions as to the

fairness of the court-martial proceedings. In addition, the applicant

complains that the court-martial was not a "tribunal established by

law" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention due, inter alia, to the ad hoc manner in which the court-

martial was convened and to the fact that the Confirming Officer can

dissolve the court-martial.

89.  However, in light of the conclusion of the Commission above, the

Commission considers that it is not necessary to examine these

remaining complaints of the applicant.

     CONCLUSION

90.  The Commission concludes, unanimously, that it is not necessary

to consider separately the applicant's additional submissions relating

to the fairness of the court-martial proceedings or his complaint that

the court-martial did not constitute a tribunal "established by law".

D.   Recapitulation

91.  The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the

applicant did not receive a fair hearing before an independent and

impartial tribunal (para. 87).

92.  The Commission concludes, unanimously, that it is not necessary

to consider separately the applicant's additional submissions relating

to the fairness of the court-martial proceedings or his complaint that

the court-martial did not constitute a tribunal "established by law"

(para. 90).

Secretary to the Commission               President of the Commission

       (H.C. KRÜGER)                            (S. TRECHSEL)