AS TO THE ADMISSIBILITY OF

                      Application No. 22107/93

                      by Alexander FINDLAY

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

23 February 1995, the following members being present:

                 MM.  C.A. NØRGAARD, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 N. BRATZA

                 J. MUCHA

                 D. SVÁBY

                 E. KONSTANTINOV

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 28 May 1993 by

Alexander FINDLAY against the United Kingdom and registered on

22 June 1993 under file No. 22107/93;

      Having regard to :

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

      the Commission;

-     the observations submitted by the respondent Government on 19

      April 1994, the observations in reply submitted by the applicant

      on 3 June 1994 and the supplementary observations submitted by

      the respondent Government on 10 February 1995;

-     the parties' oral submissions at the hearing on 23 February 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts as submitted by the parties may be summarised as

follows.

A.    Particular circumstances of the case

                              Background

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

Windsor. He is represented before the Commission by Mr. John McKenzie,

a solicitor practising in London.

      The applicant joined the British Army in 1980 when he became a

member of the Scots Guards. His service was due to terminate in or

around October or November 1992 when he would have received a

Resettlement Grant and, at the age of 60, an army pension.

      On 28 September 1981 the applicant was sentenced by a military

court to 50 days' imprisonment for absence without leave.

      In 1982 the applicant took part in the Falklands campaign. He was

wounded. He saved another soldier's life by administering a tracheotomy

to him with a biro pen. The applicant suffered extreme stress as a

result of his experiences.

      Subsequently the applicant had three further convictions before

military courts. On 29 November 1984 he was reduced to the rank of

guardsman due to his failure to follow the correct sick leave procedure

and for absence without leave. On 27 May 1986 the applicant was again

reduced in rank for failing to report for a course. On 19 February 1987

the applicant was convicted of theft and of using a false instrument.

      In 1987, the applicant sustained an injury during training for

service in Northern Ireland. He fell from a rope and broke his arm and

severely damaged his back. His back injury affected his performance

during training and he suffered from depression as a result.

      In or about 1990, the applicant, who had become a Lance Sergeant,

was serving with his regiment in Northern Ireland. On 29 July 1990,

after a heavy drinking session, he held members of his own unit at

pistol point and threatened to kill himself and certain of his

colleagues. He fired two shots which were not aimed at anyone and

subsequently surrendered the pistol. The applicant was then arrested.

                              Pre-hearing

       On 31 July 1990 an army psychiatrist ("Doctor A") examined the

applicant and stated that the applicant was responsible for his actions

at the time of the incident. However it was a combination of a number

of stresses (including his back injury and posting in Northern Ireland)

together with the applicant's heavy drinking on the day that led to the

"almost inevitable" event. Doctor A recommended "awarding the minimum

appropriate punishment" to the applicant.

      The applicant was charged by the Convening Officer ("the C.O.")

with eight offences (six civilian and two military), pursuant to the

Army Act 1955. The C.O. decided that the applicant should be tried by

general court-martial rather than by a civilian court or other form of

court-martial.

      In order to establish that the applicant was fit to stand trial,

the applicant was examined, at the request of the army, by another army

psychiatrist ("Doctor B"), who was a civilian consultant psychiatrist

with the Ministry of Defence since 1980. Her report, produced in

January 1991, confirmed that the applicant was fit to plead, knew what

he was doing at the time of the incident, but his chronic back problem

(which meant he was frustrated and depressed by not being fit for duty

in his Northern Ireland posting), and "his previous combat stresses and

a very high level of alcohol ... combined to produce this dangerous

behaviour."

      In March 1991 Doctor B produced another report, at the request

of the army, confirming that while it was clear what were the stresses

on the applicant, the nature of his reaction to them on the day in

question was to be explained by the applicant's experiences in the

Falklands war. She confirmed that similar incidents occurred in those

who had previously experienced Post Traumatic Stress Disorder ("PTSD")

and such incidents seemed to be a late feature of PTSD. Doctor B did

not clearly say that the applicant suffered from PTSD. She confirmed

that the consumption of alcohol on the relevant day was due to the

applicant's condition and not a cause of it.

      The prosecuting officer assigned to the case therefore requested

the attendance of Doctor B at the court-martial to be convened, but

Doctor B indicated that she was unwilling to attend. The applicant's

representative was then informed of Doctor B's response. In addition,

by letter dated 24 June 1991 the prosecutor wrote to the applicant's

representative offering to secure the attendance of any doctors who may

have treated the applicant, requesting that the applicant's

representative indicate which doctors he would require to attend a

court-martial, and stating expressly that the prosecuting officer

anticipated that Doctor B's attendance may be required. No response was

received from the applicant's representative despite a further

reminder, dated 16 July 1991, sent on behalf of the C.O..

      In July 1991 the applicant brought a civil action against the

Secretary of State for Defence on the basis of the negligence of the

army medical authorities in failing to diagnose and treat his PTSD and

also (but forming a lesser part of this action) in respect of his back

injury received during training in 1987.

      In October 1991 a third psychiatrist ("Doctor C") produced a

report which clearly confirmed that the applicant was suffering from

PTSD as a result of the Falklands conflict and that the combination of

the frustration and depression due to his chronic back problem, his

posting in Northern Ireland and the consumption of alcohol triggered

the incident. In addition Doctor C was of the opinion that the

applicant was psychotic, out of touch with reality and did not know

what he was doing at the time of the incident.

      By order dated 31 October 1991 the C.O. convened a general court-

martial. The C.O. was a Major General and was General Officer

Commanding ("GOC") of the London District and Household Division.

      The court-martial comprised a President and four other members

and all were subordinate in rank to the C.O.:

      - The President was a Colonel in the Territorial Army and TA

      Adviser HQ, London District. He was appointed by name by the C.O.

      and was not a permanent president.

      - Member B was a Lieutenant Colonel (Royal Anglian) and his diary

      was administered by the London District. He was appointed by name

      by the C.O. and was a permanent president sitting in the capacity

      of ordinary member.

      - Member C was a Captain (2nd Battalion Coldstream Guards)

      stationed in the London District. He was appointed to the court-

      martial by his commanding officer.

      - Member D was a Major (2nd Battalion Grenadier Guards) stationed

      in London District and the C.O., as GOC, was this member's second

      superior reporting officer. He was appointed to the court-martial

      by his commanding officer.

      - Member E was a Captain (Postal and Courier Department, Royal

      Engineers (Women's Royal Army Corps)) appointed by her commanding

      officer. The Postal and Courier Depot is under the direct command

      of the Ministry of Defence and is administered by the London

      District.

      The assistant prosecuting and defending officers were both

officers from the 2nd Scots Guards stationed in the London District.

      The Judge Advocate ("J.A.") was a barrister on general secondment

to the office of Judge Advocate General until February 1996.

      On 2 November 1991, though not fully cognisant of the opinion of

Doctor B at that time, the applicant's representatives made a written

request to the prosecuting authorities to ensure the appearance of

Doctor B at the court-martial. On 5 November 1991, the prosecutor

issued a witness summons requiring Doctor B's attendance.

                       The court-martial hearing

      On 11 November 1991 the applicant appeared before the general

court-martial. Doctor B did not appear in answer to the witness

summons. The applicant was told that Doctor B would not be available

and he claims that it was for this reason that he pleaded guilty to

seven of the charges on the charge sheet (2, 3, 4, 5, 6, 7 and 8).

Charges 2, 4 and 5 were charges of common assault (civilian offences),

charges 3 and 6 were charges of conduct to the prejudice of good order

and military discipline (a military offence) and charges 7 and 8 were

charges of threatening to kill (a civilian offence). The applicant's

representative did not apply for an adjournment of the proceedings (in

light of Doctor B's absence) nor object to any of the members of the

court-martial hearing the case.

      The applicant was also presented with a second charge sheet which

he had not seen before and which contained two charges of a

disciplinary nature related to the consumption and storage of alcohol.

He pleaded guilty to the former and not guilty to the latter charge.

      The applicant introduced to the court-martial, at the beginning

of his case, the above described reports prepared by Doctors A, B and

C. Doctor C was called by the applicant to give evidence in relation

to PTSD. He confirmed in direct evidence his view that the applicant

suffered from PTSD, that the effect on the applicant of the Falklands

war was the main reason for his behaviour, that the applicant was not

responsible for what he was doing at the time of the incident and that

the applicant was in need of counselling for what was a well recognised

disorder. During cross-examination Doctor C stated that this was, in

fact, the first time he had dealt with battle-related PTSD.

      The applicant's representative urged the court-martial that, in

light of the applicant's condition (demonstrated by the psychiatric

reports) and the little likelihood of his re-offending, the applicant

should be allowed to complete the few remaining months of his service

and leave the army with his pension intact and a minimal endorsement

on his record.

       The applicant claims that during the trial the J.A. was hostile

to the applicant's representative. In the first place, the Prosecutor

introduced, under rule 71(3)(a) of the Army Rules of Procedure (1972),

mitigating evidence as to the applicant's record since the incident.

Evidence was given to the effect that the applicant's conduct in the

year since the offence had been described by his company commander as

impeccable and that his commanding officer wished to retain the

services of the applicant in his battalion. The J.A. interrupted and

commented as follows:

      "J.A. - That is the view of the Commanding Officer, who is aware,

      is he, that the accused has been found guilty by this court of

      two offences of making a threat to kill members of his unit, and

      the Commanding Officer wishes to retain him in the Battalion does

      he ?".

      It is the applicant's recollection that the J.A. snapped a pencil

in irritation while speaking as above.

      Secondly Doctor C gave evidence to the effect that the applicant,

while suffering from PTSD, was not suffering from any other form of

mental illness. The J.A. interrupted this evidence to ask for a pause

to make a note of this point.

      No psychiatric evidence was introduced by the Prosecutor either

to rebut the reports and evidence submitted by the applicant or in

furtherance of the Prosecutor's obligation, under rule 71(3)(a) of the

Army Rules of Procedure (1972), to introduce evidence of matters which

may have made the accused more susceptible to the commission of the

offence.

      The general court-martial sentenced the applicant to 2 years'

imprisonment, reduction to the rank of guardsman and dismissal from the

army. No reasons were given for the level of the sentence (though the

court-martial noted the period of time the applicant had already been

in custody on the charges). The applicant thereby suffered a reduction

in his pension entitlements.

                             Post-hearing

      The applicant petitioned the Confirming Officer for a reduction

in sentence. The Confirming Officer was in fact the C.O. who had

appointed himself Confirming Officer under section 111 of the Army Act

1955.  The Confirming Officer received the advice of the Judge Advocate

General's office and, on 16 December 1991, the applicant was informed

that the sentence had been upheld.

      The applicant was then removed from his unit to begin his

sentence.

      The applicant petitioned the first Reviewing Authority (the

Deputy Director General of Personal Services as delegate of the Army

Board) concerning his sentence. That officer, who was not legally

qualified, also obtained advice from the Judge Advocate General's

office. By letter dated 22 January 1992, the applicant was informed

that this petition had been rejected.

      The applicant then petitioned the Director General of Personal

Services (also not legally qualified) as delegate of the Army Board in

relation to his sentence. His petition was rejected on 10 March 1992.

      The applicant was not informed of the identity of the Confirming

Officer or of either of the Reviewing Authorities. He was not informed

that advice had been obtained from the Judge Advocate General's office

or of the nature of that advice. In addition the applicant was not

given reasons for the decisions confirming his sentence and rejecting

his petitions.

      By application dated 10 March 1992, the applicant applied to the

Divisional Court of the High Court for leave to challenge, by judicial

review, the validity of the findings of the court-martial. In this

application, the applicant challenged his sentence as being excessive

and alleged that the proceedings were contrary to the rules of natural

justice. On 14 December 1992, the Divisional Court refused leave on the

basis that the conduct of the court-martial had been entirely in

accordance with the Army Act 1955. In particular the Divisional Court

found that the J.A.'s interventions were appropriate and noted that the

applicant's representative had accepted at the court-martial hearing

that the intervention by the J.A. during Doctor C's evidence was

correct and appropriate.

      A report dated 16 January 1994 was subsequently prepared by

Doctor B for the purposes of the civil action against the Secretary of

State confirming her previous opinion, though now clearly labelling the

effect of the Falklands conflict on the applicant as PTSD. In March

1984 the applicant's civil action was settled by the Secretary of State

for Defence by paying the applicant £100,000, though the settlement did

not differentiate between the claim in respect of PTSD and the back

injury. The applicant claims that this was an effective acknowledgement

by the Secretary of State for Defence that the applicant suffered from

PTSD on the day of the incident because prior to the settlement the

applicant was examined by a psychiatrist acting for the Secretary of

State who offered the applicant treatment for PTSD.

B.    Relevant domestic law and practice

1.    General

      The law and procedures in respect of courts-martial for army

personnel are contained in the Army Act 1955 ("the 1955 Act") and in

the Rules of Procedure (Army) 1972 ("the 1972 Rules"). Under section

70 (1) of the 1955 Act, "civilian" offences are also offences under the

1955 Act. Therefore, even if the charges involve civilian and army

offences, in most cases army personnel can be tried by the army

authorities on all charges under the 1955 Act. Serious offences against

army law can be tried by district, field or general court-martial.

      A general court-martial must consist of a President (normally a

brigadier or colonel in the army) and at least four other officers in

the army. A Judge Advocate ("the J.A.") must also be appointed to a

general court-martial. A general court-martial will be convened by a

Convening Officer ("C.O.") who is normally a major-general in the army.

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

C.O., and the remaining members may be appointed by name, or by the

C.O. requiring a particular commanding officer of a unit to nominate

an officer of the required rank.

       Each member of the 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 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."

2.    The Convening Officer

       The C.O. must be a "Qualified Officer" (meaning he must be at

least a field officer or of a corresponding rank) who is in command of

a body of the regular forces or in command of the unit within which the

person to be tried is serving. The Qualified Officer can delegate this

power to an officer under his command but not to an officer below the

rank of colonel.

      The powers and duties of the C.O. in relation to the prosecution

are, inter alia, to direct upon what charges the accused is to be tried

and to decide the wording of those charges. The C.O. decides on the

type of court-martial required and convenes a court-martial for each

case. The convening order specifies, inter alia, the date, place and

time of the trial, the name of the President and the details of the

other members. The C.O. ensures that a J.A. is appointed by the Judge

Advocate General's office, or failing such appointment, appoints the

J.A. himself. He also appoints the Prosecutor or directs a commanding

officer to appoint an officer to prosecute. The C.O. sends an abstract

of the evidence to the Prosecutor and to the J.A., and may indicate to

the Prosecutor the passages of the evidence which may be inadmissible.

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

the prosecution.

      In relation to the defence, the C.O.'s powers and duties include

ensuring that the accused has a proper opportunity to prepare his

defence and that the accused has proper contact with, inter alia, his

witnesses. The C.O. 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. No other

authority has this power. Witnesses not subject to military law may be

summoned to attend the trial by order of the C.O.. The accused must

also be informed by the C.O. if the prosecutor is legally qualified so

that the accused has the opportunity to obtain his own legal

representation.

      The court-martial can be dissolved by the C.O. either before or

during the trial when required in the interests of the administration

of justice (section 95 of the 1955 Act). The C.O. also acts as

Confirming Officer. Finally, before charges can be withdrawn the C.O.

must consent.

3.    Judge Advocate General and Judge Advocates

      The current Judge Advocate General was appointed to the office

by the Queen in February 1991 for 5 years. He is answerable to the

Queen and is removable from office by the Queen for inability or

misbehaviour.

      A number of assistant and deputy J.A.'s 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. One of these J.A.'s is assigned to a courts

martial by the Judge Advocate General's office or by the C.O. himself.

The J.A. does not swear an oath upon appointment and is normally

exempted from doing so at individual courts-martial. The J.A. 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 the J.A.'s receive,

out of money provided by parliament, such remuneration as the Lord

Chancellor may determine.

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

the Secretary of State for Defence on all legal matters pertaining to

his appointment, the confirming and reviewing authorities on post-trial

matters and the Ministry of Defence on legal matters. He is also

responsible for superintending the administration of army law and

retaining the records of court-martials.

      Once assigned to a court-martial the J.A. must provide, on

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

and the accused either outside of or during the court-martial. 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 for not doing so. On a number of specified matters, on

which he is consulted by the court-martial, the opinion of the J.A.

must be followed. The J.A. is also responsible for advising the court-

martial as to any defect in its constitution or in the charge sheet.

      At the close of the trial, the J.A. sums up the relevant law and

evidence. If during the court-martial's deliberations on the charges

(at which the J.A. cannot be present) further advice is required then

the court-martial must receive that advice in open court. The J.A. can,

however, advise the court-martial in private on the general principles

governing the approach to sentencing. The J.A. is not a member of the

court-martial and has no vote in the decision on the charges or on the

sentence.

      Finally, the J.A. must ensure (in conjunction with the President)

that the accused does not suffer any disadvantage during the hearing.

Where an accused pleads guilty the J.A. should explain to the accused

the nature of the charges, the resulting difference in procedures and

the full import of his plea. If the accused or his representatives

subsequently make submissions that might imply that the accused is not

guilty of the charges, the J.A. has a duty to satisfy 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 all charges.

4.    The court-martial hearing

      When the applicant pleads guilty, the Prosecutor outlines the

facts and must then, pursuant to Rule 71(3)(a) of the 1972 Rules, put

in evidence any circumstance which may have made the accused more

susceptible to the commission of the offence by way of mitigation. The

defence then makes a plea in mitigation. The members of the court-

martial retire (with the J.A.) to consider the sentence, decide, return

and announce the sentence. There is no provision for the giving of

reasons by the court-martial for its decision.

5.    Sentencing

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

even if the charges are civilian. A court-martial cannot suspend a

prison sentence, issue a probation order, sentence to community service

or issue orders under the mental health legislation. Moreover the level

of sentencing power depends on the type of court-martial that is

convened. A district court-martial is more restricted in terms of

sentencing than a general court-martial. The maximum sentence laid down

by the 1955 Act and civilian law, for the charges on the first charge

sheet in respect of which the applicant pleaded guilty, are as follows:

- Charges 2, 4 and 5: six months' imprisonment or a fine

- Charge 7: 10 years' imprisonment

- Charges 3 and 6: imprisonment not exceeding two years.

      The court-martial must award one global sentence in relation to

all the offences in respect of which the accused is found guilty.

6.    Post-hearing reviews

      (a) A Courts-Martial Appeal Court can hear appeals from a court-

martial but there is no provision for such an appeal against sentence

in circumstances where the accused pleaded guilty.

      (b) The court-martial's findings are not treated as a finding of

guilt or a sentence until confirmed by the Confirming Officer (normally

the C.O. or any officer superior in command to the C.O.). 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 must consult the Judge

Advocate General's office for advice, but the actual J.A. who attended

the court-martial hearing does not proffer this advice. That advice is

not disclosed to the appellant on grounds of legal privilege and/or

public interest immunity. 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.

      (c) Once the Confirming Officer has confirmed the sentence, the

defendant can petition the Reviewing Authorities. A petitioner can have

more than one review. The relevant Reviewing Authorities were the

Queen, the Army Board as delegate of the Defence Council, the Deputy

Director and the Director General of Personal Services (Army) at the

Ministry of Defence as delegate of the Army Board and any officer

superior in command to the Confirming Officer. The Reviewing

Authorities may consult the Judge Advocate General's office for advice

and have the power to quash a sentence and to exercise the same powers

as the Confirming Officer in relation to substituting, remitting or

commuting the sentence.

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

of the identity of the Confirming Officer or of the Reviewing

Authorities. No statutory or formalised procedures are laid down for

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

decisions delivered subsequent to the post-hearing reviews. Neither the

fact of, nor the nature of, the advice received from the Judge Advocate

General's office by these bodies is disclosed to a petitioner, as this

advice is considered legally privileged or covered by public interest

immunity.

COMPLAINTS

      The applicant makes a number of complaints under Article 6 para.

1 of the Convention:

1.    The applicant complains that he did not receive a fair hearing

before the court-martial and in particular he complains in relation to:

      (a) the alleged lack of equality of arms between the prosecution

      and defence;

      (b) the inaction of the C.O. in relation to the attendance of a

      vital defence witness, and the conduct of the prosecution in

      respect of the psychiatric evidence. This meant that the

      applicant had to plead guilty and was then prevented from

      presenting his best plea in mitigation;

      (c) the failure to inform the applicant of the advice given by

      the J.A. in private to the court-martial in relation to

      sentencing;

      (d) the failure of the court-martial to give reasons for its

      decision on sentence; and

      (e) the alleged hostility of the J.A. during the hearing.

2.    The applicant also complains that he did not receive a fair

hearing in relation to the post-hearing reviews as these procedures

were appeals but were essentially administrative in nature and

conducted in private.

      In particular, he complains about the failure to give reasons for

each of the decisions, to identify the persons making those decisions

or to inform the applicant of the advice given by the Judge Advocate

General's office. The applicant also complains specifically about the

fact that neither of the Reviewing Authorities was legally qualified,

which implies that, when the first review took place on the basis of

the advice of the Judge Advocate General's office, it was likely that

such advice would be followed. The second Reviewing Authority did not

seek any such advice, and therefore a person without any legal

qualifications or advice made the final decision on the applicant's

petition against sentence. The applicant also complains about the lack

of statutory or otherwise formal rules, procedures or oaths in relation

to the conduct of the post-hearing reviews.

3.    The applicant further complains that the internal organisation

and structure of the court-martial, the Confirming Officer and the

Reviewing Authorities meant that those bodies were not, or in the

alternative were not seen to be, independent or impartial. In

particular the applicant refers to:

      (a) the fact that neither the court-martial, the Confirming

      Officer nor the Reviewing Authorities were independent of the

      prosecuting authority;

      (b) the employment of the J.A. by the Ministry of Defence, the

      advice of the J.A. given in private, the alleged hostility of the

      J.A. during the court-martial and the subsequent involvement of

      the Judge Advocate General's office in advising, in private,

      during the post-hearing reviews;

      (c) the position and wide powers of the C.O., that officer's

      numerous roles prior to, during and after the hearing, his

      appointment of the members of the court-martial and the

      relationship between those members and the C.O.;

      (d) the appointment of members for a specific court-martial only;

      and

      (e) the fact that the Judge Advocate General's office acted as

      legal adviser at the hearing, as prosecutor at the confirming

      stage and as prosecutor and appeal authority at the review

      stages.

4.    In addition the applicant complains that the decisions of the

court-martial and in the post-hearing reviews were unreasonable in view

of the psychiatric evidence submitted by the applicant.

5.    Finally the applicant complains that he was subjected to an

unreasonably limited sentencing regime (in comparison with that

available in civilian courts) as a consequence of the unappealable

decision by the C.O. to try him by general court-martial.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 28 May 1993 and registered on

22 June 1993.

      On 1 December 1993 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

      The Government's observations were received, after two extensions

of the time-limit fixed for this purpose, on 19 April 1994 and the

applicant's observations in reply were received on 3 June 1994.

      On 7 December 1995 the Commission decided to invite the parties

to a hearing, which was held on 23 February 1995. At the hearing the

Government were represented by Mr. J. Rankin, Agent, Foreign and

Commonwealth Office, Mr. P. Havers and Mr. N. May, both of Counsel, and

Ms. J. Murnane, Major-General A. Rodgers and Air Vice Marshal G.

Carlton, as advisers. The applicant was represented by Mr. J. MacKenzie

and Mr. G. Blades, Solicitors.

THE LAW

      The applicant raises a number of complaints under Article 6 para.

1 (Art. 6-1) of the Convention in relation to the court-martial, the

Convening Officer and the Reviewing Authorities and in respect of his

hearings and petitions before those bodies.

      Article 6 para. 1 (Art. 6-1), insofar as is relevant, reads as

follows:

      "In the determination of ... any criminal charge against

      him, everyone is entitled to a fair and public hearing ...

      by an independent and impartial tribunal established by

      law."

      In the first place, the applicant complains that neither the

court-martial, the Convening Officer nor the Reviewing Authorities

were, or could be perceived to be, independent or impartial.

      In this regard, the applicant mainly focuses on internal

structural and organisational matters. He refers, inter alia, to the

status, roles and duties of the Convening Officer, the Judge Advocate

and the Judge Advocate General's office. The applicant also refers to

the relationship of the members of the court-martial, the Convening

Officer and the Reviewing Authorities to the prosecuting authority. He

points to the lack of civilian judicial members of the court-martial,

the absence of guarantees against outside pressures and the ad hoc

nature of the appointment of the members of the court-martial. The

applicant submits that, inter alia, the above factors demonstrate a

lack, or at least a perceived lack, of independence and impartiality

particularly when, as in his case, an important policy issue in respect

of Post Traumatic Stress Disorder arose for consideration.

      The Government argue that the independence and impartiality of

these bodies is demonstrated by a number of factors. The Government

point out, inter alia, that the members of the court-martial take an

oath of independence and impartiality, that none of those members is

subject to instruction by a higher authority, that the Convening

Officer is not the prosecuting authority, that the Judge Advocate and

the advisers in the Judge Advocate General's office are civilians,

experienced members of the legal profession and totally independent of

the armed forces, and that an individual member of a court-martial

cannot be removed by a superior officer once appointed.

      The Government also argue that the Judge Advocate must satisfy

himself that none of the members of the court-martial knows the accused

or has heard anything about the charges. In the present case the

applicant did not object to the constitution of the court-martial and

in any event, according to the Government, it does not follow from the

fact that the members of the court-martial were all subordinate in rank

to the Convening Officer (having no direct prior relationship with that

Officer) that they lacked independence or impartiality.

      In addition, the Government submit that military personnel are

best suited to try a member of the armed forces under military law in

respect of offences committed against fellow soldiers on military

premises when on a tour of duty. The Government argue that the ad hoc

convening of a court-martial for each case is in fact an enhancement

of the protections available to an accused as the members are not

serving a term of office which they may wish to be renewed.

      Secondly, the applicant complains that the court-martial hearing

and the post-hearing reviews were neither fair nor public.

      In this respect the applicant points mainly to the lack of

reasons for the decisions of the court-martial, the Confirming Officer

and the Reviewing Authorities, the privacy surrounding the advice given

by the Judge Advocate and the Judge Advocate General's office, together

with the administrative and private nature of the post-hearing reviews.

He argues that, inter alia, these factors meant that he was neither

able to establish upon what basis the relevant bodies made their

decisions nor, therefore, effectively able to participate in any of the

post-hearing reviews and the judicial review proceedings.

      The applicant also points, in this respect, to an inequality of

arms between the prosecution and the defence due to the Convening

Officer's effective control of the court-martial hearing through the

prosecuting officer, and to the conduct of the prosecuting officer, the

Judge Advocate and the Convening Officer (the latter of whom allegedly

failed to ensure the attendance of a vital witness) in respect of that

hearing. These factors, the applicant submits, also contributed to the

overall unfairness of the proceedings against him. He also takes issue

with the limited sentencing regime available and the reasonableness of

the decisions reached in his case.

      The Government argue, inter alia, that the procedural guarantees

accorded to the applicant before the court-martial (including the right

to call and cross-examine witnesses and to representation) and the

duties of the Judge Advocate towards the applicant during the court-

martial hearing, ensured that the proceedings, taken as a whole, were

fair. The Government also submit that, in light of the importance of

discipline in the armed forces and in view of the seriousness of the

charges, the reasons for the sentence were obvious.

      In addition, the Government dispute that the Convening Officer

controlled the proceedings through the prosecuting officer, and point

out that the applicant was represented by an experienced lawyer. The

Government also refer to the fact that the conduct of the Judge

Advocate was considered and found acceptable by the Divisional Court,

and submit that the prosecuting officer did all that was possible to

ensure the attendance of the relevant witness, including issuing a

witness summons. The applicant has, according to the Government, no

right to an appeal under the Convention and, in any event, the post-

hearing reviews are not, according to the Government, designed to be

full appeals, but rather further pleas in mitigation.

      In respect of the sentencing regime, the Government submit that

the question of whether the accused is tried by the civilian or

military authorities is a decision for the civilian authorities, though

by agreement the military authorities do not have to report certain

matters to the civilian authorities. A wider sentencing regime is not

possible due to the lack of facilities in the armed forces and to the

fact that some sentences would be inappropriate to pass upon a serving

member of the armed forces and inconsistent with his duties. The

Government further submit that the decision of the court-martial was

reasonable in view of, inter alia, the importance of discipline in army

life, the context in which the offences were committed and the

seriousness of the charges.

      The Government therefore conclude that all of the applicant's

complaints under Article 6 para. 1 (Art. 6-1) of the Convention should

be deemed manifestly ill-founded, or that the case does not disclose

a violation of the Convention.

      The Commission finds, in light of the parties' submissions, that

the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the

Convention raise serious and complex issues of fact and law which

require determination on their merits. It follows that the application

cannot be dismissed as being manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground

for declaring it inadmissible has been established.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

      Secretary to the Commission           President of the Commission

           (H.C. KRUGER)                          (C.A. NØRGAARD)