AS TO THE ADMISSIBILITY OF

                      Application No. 29374/95

                      by Derek DONNELLY

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 A. WEITZEL

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 29 September 1995

by Derek DONNELLY against the United Kingdom and registered on

24 November 1995 under file No. 29374/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the statement by the respondent Government in their letter dated

     26 February 1997 that they had no observations to make on the

     admissibility of the application;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen, born in 1961 and resident in

Gateshead. He is represented before the Commission by Pearson

Caulfield, a firm of solicitors practising in Newcastle Upon Tyne. The

facts as submitted by the applicant, upon which the Government have not

commented, may be summarised as follows.

A.   Particular circumstances of the case

     In early January 1993 the applicant was interviewed by the

military police in relation to an alleged incident which occurred

around midnight on 30/31 October 1992. By charge sheet dated

5 April 1993 the applicant, then a non-commissioned officer in the

army, was charged (pursuant to section 70(1) of the Army Act 1955) with

assault occasioning actual bodily harm or, in the alternative, with

common assault contrary to the Offences Against The Person Act 1861 and

the Criminal Justice Act 1988, respectively.

     The Convening Officer, by order dated 1 October 1993, convened

a district court-martial to try the applicant on the charges. The

applicant was represented by a civilian solicitor and an army officer.

The applicant was found guilty of assault occasioning actual bodily

harm by the court-martial on 21 December 1993 and was sentenced to six

months detention, to be dismissed from the army and to be reduced to

the ranks.

     The applicant petitioned the Confirming Officer in relation to

conviction and sentence. That officer confirmed both conviction and

sentence and his conviction and sentence were promulgated on

19 January 1994. By letter dated 9 May 1994 the applicant's

representatives were informed of the decision, taken by the Army Board,

to reject the applicant's subsequent petition to the Defence Council.

     On 22 February 1995 the application for leave to appeal against

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

by a single judge of that court. The single judge indicated that he had

considered the proceedings and grounds presented by the applicant but

had concluded that there was no substance in the applicant's

complaints. On 2 May 1995 the renewed application for leave to appeal

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

was rejected by that court, that court handing down a detailed judgment

in this respect.

B.   Relevant domestic law and practice

     The principal law and procedures applicable are contained in the

Army Act 1955 ("the 1955 Act") prior to its amendment by the Armed

Forces Act 1996 ("the 1996 Act"), which latter Act came into force on

1 April 1997. Accordingly, and apart from section (g) below, the

following is an outline of the pre-1996 Act law and practice.

(a)  General

     Many civilian offences were also offences under the 1955 Act

(section 70(1)). Although the final decision on jurisdiction lay with

the civilian authorities, army personnel who were accused of such

offences were usually tried by the army authorities unless, for

example, civilians had been in some way involved.

     Depending on their gravity, charges under the 1955 Act could be

tried by district, field or general court-martial. These were not

standing courts: they came into existence in order to try a single

offence or group of offences.

     At the time of the events in question, a district court-martial

consisted of a President, who could not be under the rank of Field

Officer and was appointed by name by the Convening Officer, and at

least two other officers, appointed either by name by the Convening

Officer or, at the latter's request, by their commanding officer.

     Each member of the court-martial had to 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 Army 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."

(b)  The Convening Officer

     Before the coming into force of the 1996 Act, the Convening

Officer of a district court-martial had to be a "qualified officer" or

an officer not below the rank of Colonel to whom the qualified officer

had delegated his or her powers. To be a "qualified officer", an

officer had to be not below the rank of Field Officer or corresponding

rank and in command of a body of the regular forces or of the command

within which the person to be tried was serving.

     The Convening Officer assumed responsibility for every case to

be tried by court-martial. He would decide upon the nature and detail

of the charges to be brought and was responsible for convening the

court-martial.

     He would draw up a convening order, which would specify, inter

alia, the date, place and time of the trial, the name of the President

and the details of the other members, all of whom he could appoint. He

ensured that a judge advocate was appointed by the Judge Advocate

General's Office and, failing such appointment, could appoint one. He

also appointed, or directed a commanding officer to appoint, the

prosecuting officer.

     Prior to the hearing, the Convening Officer was responsible for

sending an abstract of the evidence to the prosecuting officer and to

the judge advocate, and could indicate the passages which might be

inadmissible. He procured the attendance at trial of all witnesses to

be called for the prosecution. When charges were withdrawn, the

Convening Officer's consent was normally obtained, although it was not

necessary in all cases, and a plea to a lesser charge could not be

accepted from the accused without it. He had also to ensure that the

accused had a proper opportunity to prepare his defence, legal

representation if required and the opportunity to contact the defence

witnesses, and he was responsible for ordering the attendance at the

hearing of all witnesses "reasonably requested" by the defence.

     The Convening Officer could dissolve the court-martial 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 usually also acted as Confirming Officer.

(c)  The Judge Advocate General and judge advocates

     The Judge Advocate General at the time of the events in question

was appointed by the Queen in February 1991 for five years. He was

answerable to the Queen and removable from office by her for inability

or misbehaviour. He had the role of adviser to the Secretary of State

for Defence on all matters touching and concerning the office of Judge

Advocate General, including advice on army law and the procedures and

conduct of the court-martial system. He was also responsible for

advising the confirming and reviewing authorities following a court-

martial.

     Judge advocates are appointed to the Judge Advocate General's

Office by the Lord Chancellor. They must have at least seven and five

years experience respectively as an advocate or barrister.

     At the time of the events in question, a judge advocate was

appointed to each court-martial, either by the Judge Advocate General's

Office or by the Convening Officer. He was responsible for advising the

court-martial on all questions of law and procedure arising during the

hearing and the court had to accept this advice unless there were

weighty reasons for not doing so. In addition, in conjunction with the

President, he was under a duty to ensure that the accused did not

suffer any disadvantage during the hearing. At the close of the

hearing, the judge advocate would sum up the relevant law and evidence.

     Prior to the coming into force of the 1996 Act, the judge

advocate did not take part in the court-martial's deliberations on

conviction or acquittal, although he could advise it in private on

general principles in relation to sentencing. He was not a member of

the court-martial and had no vote in the decision on conviction or

sentence.

(d)  The court-martial hearing

     At the commencement of the trial, the accused could object to

individual members of the court-martial, such objection being

considered in closed court.

     The accused was then asked to plead in respect of the charge. If

a plea of not guilty was entered the procedure was similar to that

followed in the (civilian) Crown Court. After the prosecution had made

its case, the defence could enter a submission of no case to answer.

If this submission was not accepted, the judge advocate would advise

the accused on the alternatives open to him and the defence would

proceed with its case. Witnesses could be called for the prosecution

and the defence and both sides could make a closing submission, the

defence submission being the last. During the trial the court-martial

could adjourn to consult the Convening Officer on points of law; the

latter then had to take legal advice from the Judge Advocate General.

The members of the court-martial retired (without the judge advocate)

to deliberate on their findings, returned and pronounced those

findings. Their votes and opinions were private and it was not

disclosed whether the decision had been by a majority. In the event of

a conviction or a plea of guilty, the prosecuting officer put in

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

bearing on the sentence to be imposed. The defence made a plea in

mitigation and could call witnesses in support. The members of the

court-martial then retired (this time with the judge advocate) to

consider the sentence.

     The sentence was announced in open court. There was no provision

for the giving of reasons by the court-martial for its decision on

guilt or sentence.

(e)  Confirmation and post-hearing reviews

     Until the amendments introduced by the 1996 Act, the findings of

a court-martial were not effective until confirmed by a "Confirming

Officer". Prior to confirmation, the Confirming Officer used to seek

the advice of the Judge Advocate General's Office, where a judge

advocate different from the one who acted at the hearing would be

appointed. The Confirming Officer could withhold confirmation or

substitute, postpone or remit in whole or in part any sentence.

     Once the sentence had been confirmed, the defendant could present

a petition of appeal against conviction and/or sentence to the

"reviewing authority", which was usually the Army Board in cases

involving army personnel. It had the power to quash a finding and to

exercise the same powers as the Confirming Officer in relation to

substituting, remitting or commuting the sentence. A petitioner was not

informed of the identity of the Confirming Officer or of the reviewing

authority. No statutory or formalised procedures were laid down for the

conduct of the post-hearing reviews and no reasons were given for

decisions delivered subsequent to them. Neither the fact that advice

had been received from the Judge Advocate General's Office nor the

nature of that advice was disclosed.

(f)  Courts-Martial Appeal Court

     The Courts-Martial Appeal Court ("CMAC") was established by the

Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-

Martial (Appeals) Act 1968. The CMAC had the same status and, in

essence, the same procedure as the (civilian) Court of Appeal, Criminal

Division. Its judges included ordinary and ex officio judges of the

Court of Appeal and judges of the High Court nominated by the Lord

Chief Justice.

     If an appeal petition was rejected by the Army Board an appellant

could apply to a single judge of the CMAC (and, if necessary, also to

the full court) for leave to appeal against conviction. There was no

provision for an appeal against sentence only, although certain powers

of revising sentences, pursuant to an appeal against conviction, were

available to the CMAC.

     The hearing of the substantive appeal did not constitute a full

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

empowered to consider any question required for the doing of justice

and could order a retrial. It also had 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 had to allow an appeal against conviction if it

considered that the finding of the court-martial was, in all the

circumstances, unsafe or unsatisfactory or involved a wrong decision

on a question of law. The appeal had also to be allowed if there was

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

the appeal had to be dismissed. An appellant required the leave of the

CMAC to attend any hearing in relation to the appeal. Leave would only

be granted where the CMAC considered that his presence would serve some

useful purpose or was necessary in the interests of justice. Legal aid

for an appeal to the CMAC was available under certain conditions and

the appellant could obtain an order for costs in his favour if his

appeal was allowed.

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

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

the House of Lords itself.

(g)  The Armed Forces Act 1996

     Under the 1996 Act, the role of the Convening Officer ceases to

exist and its functions are split among three different bodies: the

higher authority, the prosecuting authority and court administration

officers (Schedule I to the 1996 Act).

     The higher authority, a senior officer, decides whether any case

referred to him by the accused's commanding officer should be dealt

with summarily, referred to the new prosecuting authority, or dropped.

Once the higher authority has taken this decision, he has no further

involvement in the case. The prosecuting authority is the legal branch

of the relevant Service. Following the higher authority's decision to

refer a case to it, the prosecuting authority has an absolute

discretion, applying similar criteria to those applied in civilian

cases by the Crown Prosecution Service, to decide whether or not to

prosecute, what type of court-martial would be appropriate and what

charges should be brought. It also conducts the prosecution (the

1996 Act, Schedule I, Part II).

     Under the new legislation, court administration officers have

been appointed in each Service. They are independent of both the higher

and the prosecuting authorities and are responsible for making the

arrangements for courts-martial, including arranging venue and timing,

ensuring that a judge advocate and any court officials required are

available, securing the attendance of witnesses and selection of

members. Officers under the command of the higher authority will not

be selected as members of the court-martial (the 1996 Act, Schedule I,

Part III).

     Each court-martial now includes a judge advocate as a member. His

advice on points of law is binding on the court and he has a vote on

sentence (but not on conviction). The casting vote, if needed, rests

with the president of the court-martial, who gives reasons for the

sentence in open court. The Judge Advocate General no longer provides

general legal advice to the Secretary of State for Defence (the

1996 Act, Schedule I, Part III).

     Findings by a court-martial are no longer subject to confirmation

or revision by a Confirming Officer (whose role is abolished). A

reviewing authority has been established in each Service to conduct a

single review of each case. Reasons are now given for the decision of

the reviewing authority. As part of this process, post-trial advice

received by the reviewing authority from a judge advocate (different

from the one who officiated at the court-martial) is disclosed to the

accused. A right of appeal against sentence to the CMAC has been added

to the existing right of appeal against conviction (the 1996 Act,

section 17 and Schedule V).

COMPLAINTS

1.   The applicant complains under Article 6 para. 1 of the Convention

that he was denied a fair and public hearing by an independent and

impartial tribunal.

     In these respects, he points out, inter alia, that he was not

given the option of a trial in a civil court; that the father of the

alleged victim was an officer in the air force; that the President of

the court-martial convinced the other members of the court-martial of

his guilt; that the evidence against him was insufficient and his

sentence was excessive; that the court-martial failed to have due

regard to the provocation of the applicant by the alleged victim; that

the Army Board failed to give proper consideration to his petition;

that he could not appeal against sentence alone to the Courts-Martial

Appeal Court; that his legal representation was ineffective; and that

he lost the possibility of voluntary redundancy after his court-

martial.

     In addition, he complains about the manner in which the defending

officer is appointed, invoking Article 6 para. 3 of the Convention.

2.   He also complains about the length of the court-martial

proceedings.

3.   Finally, he complains under Article 5 para. 4 of the Convention

that he could not have his sentence reviewed by the civilian courts

because there is no right to appeal against sentence only to the

Courts-Martial Appeal Court.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 29 September 1995 and was

registered on 24 November 1995.

     On 27 November 1996 the Commission decided to communicate the

application and request the parties observations on the admissibility

and merits of the applicant's complaints relating to the independence,

impartiality and fairness aspects of Article 6 para. 1 of the

Convention. By letter dated 26 February 1997 the Government stated that

they had no observations on the admissibility of the application.

THE LAW

1.   The applicant complains under Article 6 para. 1 (Art. 6-1) that

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

tribunal. In addition, he complains about the manner in which the

defending officer was appointed and he invokes Article 6 para. 3

(Art. 6-3) of the Convention. Article 6 (Art. 6) 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 ...

     3. Everyone charged with a criminal offence has the following

     minimum rights: ...

           c. to defend himself in person or through legal assistance

           of his own choosing or, if he has not sufficient means to

           pay for legal assistance, to be given it free when the

           interests of justice so require; ..."

     The Government have no observations as regards the admissibility

of the applicant's complaints.

     The Commission would first note the applicant's submission

relating to his inability to claim voluntary redundancy after the

court-martial proceedings. Since this is a matter which relates to the

damage to the applicant as a result of the court-martial proceedings

against him, the Commission notes that this submission falls to be

considered, if at all, in the context of Article 50 or Article 32

para. 2 (Art. 50, 32-2) of the Convention.

     As to the independence and impartiality of the court-martial, the

Commission recalls the judgments of the Court in the Findlay and Coyne

cases (Eur. Court HR, Findlay v. the United Kingdom judgment of

25 February 1997, Reports 1997-I, no. 30 and Coyne v. the United

Kingdom judgment of 24 September 1997, to be published in

Reports 1997-V, no. 49). The Court in those cases found that an army

general court-martial and an air force district court-martial,

respectively did not constitute independent or impartial tribunals. The

Commission notes that, in the present case, a district army court-

martial was convened pursuant to the Army Act 1955 to try the applicant

and that he was found guilty of the civilian criminal offence of

assault occasioning actual bodily harm contrary to the Offences Against

the Person Act 1861.

     As to the fairness of the proceedings, the Commission also

recalls its finding in its Report in the Findlay case that a court-

martial found to lack independence and impartiality could not guarantee

a fair trial (Eur. Court HR, Findlay v. the United Kingdom judgment,

loc. cit., Comm. Report, para. 108).

     The Commission further recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the general

concept of fairness guaranteed by paragraph 1 of this Article (see, for

example, Eur. Court HR, Unterpertinger v. Austria judgment of

24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, and

in the circumstances of the present case, the Commission will consider

the applicant's complaint under Article 6 para. 3 (Art. 6-3) as regards

the manner of appointment of his defending officer in the context of

its consideration of the fairness aspect of Article 6 para. 1

(Art. 6-1) of the Convention.

     In such circumstances, the Commission considers that the

applicant's complaints as regards the independence and impartiality of

the court-martial and as regards the fairness of the court-martial

proceedings raise complex and serious issues under Article 6 para. 1

(Art. 6-1) of the Convention which require determination on the merits.

It follows that these complaints of the applicant cannot be dismissed

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring the

complaints inadmissible has been established.

2.   The applicant also complains about the length of the court-

martial proceedings and the Commission has considered this complaint

under the "reasonable time" requirement of Article 6 para. 1 (Art. 6-1)

of the Convention.

     The Commission notes the nature of the charge of which the

applicant was convicted (assault occasioning actual bodily harm

contrary to the Offences Against the Person Act 1861) and the sentence

imposed, which included six months detention. Accordingly, the

Commission considers that the proceedings involved the determination

of a "criminal charge" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention and that Article 6 applies to the

applicant's complaint as regards the length of the court-martial

proceedings (Eur. Court HR, Garyfallou AEBE v. Greece judgment of

24 September 1997, Reports 1997-V, no. 49, paras. 32-33, with further

references).

     The Commission considers that the proceedings can be taken to

have begun in early January 1993 when the applicant was first

questioned by the military police, this being the date on which, on the

basis of the facts as submitted, the applicant's situation was

substantially affected by the proceedings against him (Eur. Court HR,

Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24,

para. 46). It further considers that those proceedings ended with the

denial of leave to appeal by the full Courts-Martial Appeal Court on

2 May 1995. Accordingly, the proceedings lasted approximately 2 years

and four months.

     The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (Eur. Court HR, Kemmache v.

France judgment of 27 November 1991, Series A no. 218, p. 27.

para. 60).

     The Commission considers that the applicant has submitted

relatively little detail as regards the conduct of the proceedings. The

Commission notes that the applicant's court-martial did not take place

until almost a year after he was interviewed by the military police

(January 1993). However, the Commission observes that during this

period the charges against the applicant were investigated, the

applicant was charged in April 1993, the court-martial was convened in

October 1993 and that court-martial took place in December 1993.

Although there was a three and a half month delay between the

promulgation of the conviction and sentence (19 January 1994) and the

Army Board's decision (9 May 1994), the applicant does not indicate

when he lodged his petition to the latter body. Similarly, and while

the single judge did not subsequently hand down his decision until

February 1995, the applicant has not indicated when he made the

relevant application and, in any event, one of his requests before the

single judge was for an extension of time to make his leave to appeal

application. As for the proceedings before the Courts-Martial Appeal

Court, that court handed down a detailed judgment within two and half

months (2 May 1995) of the decision of the single judge.

     Having regard to all the circumstances, to the overall length of

the proceedings and to the two petitions and two applications for leave

to appeal, all of which were considered subsequent to the court-martial

itself, the Commission considers that the applicant has not

demonstrated that the proceedings as a whole exceeded the "reasonable

time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention.

     Accordingly, the Commission considers that this complaint of the

applicant is manifestly ill-founded and inadmissible pursuant to

Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant further complains that, since the Courts-Martial

Appeal Court could not consider an appeal against sentence alone, he

had no right to have his sentence reviewed by a court outside of the

military system. He invokes Article 5 para. 4 (Art. 5-4) of the

Convention.

     Having regard to the fixed nature of the applicant's sentence

(namely, that it is not subject to change with the passage of time),

the guarantees of Article 5 para. 4 (Art. 5-4) were satisfied by the

original trial and subsequent proceedings and that Article confers no

additional right to challenge the lawfulness of the continuing

detention (see, for example, Eur. Court HR, Wynne v. the United Kingdom

judgment of 18 July 1994, Series A no. 294-A, p. 12 para. 36). Insofar

as the applicant submits that those original proceedings did not comply

with the Convention, this matter has been considered above in relation

to the complaint under 6 para. 1 of the Convention.

     Accordingly, the Commission finds the complaint of the applicant

under Article 5 para. 4 (Art. 5-4) of the Convention to be inadmissible

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints in relation to the independence and

     impartiality of the court-martial and in respect of the fairness

     of the court-martial proceedings; and

     DECLARES INADMISSIBLE the remainder of the application.

       M.F. BUQUICCHIO                            M.P. PELLONPÄÄ

          Secretary                                 President

     to the First Chamber                      of the First Chamber