FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

45689/99 and 13 other applications against the United Kingdom (see attached table)

The European Court of Human Rights (Fourth Section) , sitting on 4 June 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the applications,

Having deliberated, decides as follows:

THE FACTS

The applicants are all British citizens. A list of applicants is annexed to the present decision. All except the second, fifth and fourteenth applicants are represented before the Court by Mr. Gilbert Blades, a solicitor practising in Lincoln. The second and fifteenth applicants are represented before the Court by Mr. John Mackenzie, a solicitor practising in Henley-on-Thames. The fifth applicant is represented by Mr Nicolas O’Brien, a barrister practising in Bristol.

A. The circumstances of the case

The applicants were all, at the material time, serving members of the British armed forces.

On 2 July 1997, the first applicant was convicted by a District Court Martial (“DCM”) of drunkenness and common assault. He was sentenced to a fine of GBP 500 and ordered to pay GBP 100 compensation. On 21 July 1997, the reviewing authority, having received advice from an Assistant Judge Advocate General, confirmed the DCM’s finding and sentence. The first applicant’s application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 4 November 1997.

On 15 September 1998, the second applicant was convicted by a DCM of desertion from the Army. He was sentenced to ten months’ detention and dismissal from the Army. On 31 October 1998, the reviewing authority, having received advice from the Vice Judge Advocate General, confirmed the sentence. The second applicant’s appeal against sentence to the Courts-Martial Appeal Court was dismissed on 25 January 1999.

On 4 September 1998, the third applicant was convicted by a DCM of assault occasioning actual bodily harm. He was sentenced to be reduced in rank and ordered to pay GBP 1000 compensation. On 4 November 1998, the reviewing authority, having received advice from the Judge Advocate General, confirmed the DCM’s finding and sentence. On 21 December 1998, the third applicant’s application for leave to appeal against conviction and sentence to the Courts Martial Appeal Court was rejected by Mr Justice Toulson , who commented that the judge advocate’s summing up at the DCM had not been unfair and that there was no arguable ground for considering the third applicant’s conviction unsafe. The third applicant’s renewed application for leave to appeal to the full Courts-Martial Appeal Court was dismissed on 22 March 1999.

On 18 February 1998, the fourth and fifth applicants were convicted by a DCM of theft. They were each sentenced to fifty six days’ detention, to be dismissed from the service and to be reduced to the ranks. On 3 April 1998, the reviewing authority, having received advice from the Judge Advocate General, confirmed the DCM’s finding and sentence. The fourth and fifth applicants’ appeals to the Courts-Martial Appeal Court against conviction and sentence were dismissed on 5 February 1999. In delivering the judgment of the court, Lord Justice Rose noted that, during the course of his closing speech to the DCM, the fourth and fifth applicants’ legal representative had been interrupted by the judge advocate while raising the question of whether or not the property concerned had been abandoned. The judge advocate had stated that, since the question had not been put to witnesses in the course of the DCM, it could not be raised in closing. Lord Justice Rose observed that the representative had accepted the judge advocate’s comment and ruling. As to the fourth and fifth applicants’ allegation of bias and hostility on the part of the judge advocate, the Courts-Martial Appeal Court examined the various passages referred to in the transcripts of the DCM and concluded that the majority did not display any hostility or bias, finding instead that some were designed for clarification purposes and at least one was capable of helping the defence case. In relation to certain interventions which the judge advocate made so as to bring matters to the attention of the prosecution side, the court observed that these concerned matters which were “highly relevant” to the proceedings, and could not be said to show hostility towards the defence side. The court was critical of aspects of the judge advocate’s questioning of the fourth and fifth applicants while they were giving evidence, observing that this had gone further than it should have done, but concluded that the case against each applicant was of such strength that the complaints about those passages were incapable of giving rise to any question as to the safety of the convictions.

On 3 March 1999, the sixth applicant was convicted by a General Court Martial (“GCM”) of indecent assault on a man. The victim of the assault gave evidence against the sixth applicant, as did two other eye-witnesses and there was medical evidence indicating that an indecent assault had taken place. At the close of legal argument and prior to the GCM’s retirement to vote on verdict and sentence, the judge advocate directed that section 34 of the Criminal Justice and Public Order Act 1994 (see below) entitled the court to draw an adverse inference from the failure of the sixth applicant to mention in police interview an incident involving the victim which he had described to the court when he gave evidence. The sixth applicant was sentenced to one year and ten months’ detention and dismissed from the service. On 14 April 1999, the reviewing authority, having received advice from the Judge Advocate General, confirmed the GCM’s verdict and reduced the sentence to one years’ detention and dismissal from the service. In addressing the sixth applicant’s complaint about the advocate general’s direction, the Judge Advocate General examined the entire transcript of the police interview and concluded that the sixth applicant had had “every opportunity” to mention the incident concerned. He highlighted that the judge advocate had directed that no adverse inference could be drawn if the court accepted that the sixth applicant’s explanation for his failure to remember the incident during police questioning was, or might be, true. He concluded that, in all the circumstances, there was nothing to suggest that the judge advocate had given a misdirection. This conclusion was affirmed by Mr Justice Gray upon dismissing the sixth applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 30 June 1999. The sixth applicant’s renewed application for leave to appeal to the full Courts-Martial Appeal Court was dismissed on 28 October 1999.

On 18 February 1999, the seventh applicant was convicted by a DCM of three offences of theft. The judge advocate at the DCM dismissed an application by the seventh applicant for a stay of the proceedings on the ground that it had been indicated to him previously that no charges would be brought, and that the proceedings thus constituted an abuse of process. He was sentenced to a fine of GBP 75. On 27 April 1999, the reviewing authority, having received the advice of the Judge Advocate General, confirmed the DCM’s finding and sentence. In his advice, the Judge Advocate General re-examined the seventh applicant’s arguments as to abuse of process and concluded that the judge advocate at the DCM had been right to dismiss them. Mr Justice Mitchell, when dismissing the seventh applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 9 July 1999, commented that the judge advocate’s approach to the question of abuse of process “cannot be faulted: There is no arguable ground”. The seventh applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 4 November 1999.

On 3 August 1999, the eighth applicant was convicted by a GCM of indecent assault. The judge advocate at the DCM dismissed an application by the eighth applicant for a stay of the proceedings on the ground that it had been indicated to him previously that no charges would be brought, and that the proceedings thus constituted an abuse of process. He was sentenced to dismissal from the service. On 8 September 1999, the reviewing authority, having received the advice of an Assistant Judge Advocate General, confirmed the GCM’s finding and sentence. In dismissing the eighth applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 15 December 1999, Mr Justice Morison confirmed the view expressed by the judge advocate at the DCM that the proceedings did not amount to an abuse of process. The eighth applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 11 April 2000.

On 29 October 1999, the ninth applicant was convicted by a DCM of conduct to the prejudice of good order and air force discipline in that he took and drove away a Ministry of Defence vehicle for his own private purposes. He was sentenced to a fine of GBP 1000. On 22 November 1999, the Reviewing Authority confirmed the DCM’s verdict and reduced the fine to GBP 250. In his advice to the reviewing authority, the Vice Judge Advocate General confirmed the view expressed by the judge advocate at the DCM that the failure to record summary proceedings which had taken place prior to the DCM did not amount to an abuse of process. He advised that the DCM had had before it evidence upon which it had been entitled to reach a guilty verdict, and that the judge advocate’s direction had been appropriate, as accepted by the ninth applicant’s representative before the DCM. The Vice Judge Advocate General’s views were confirmed by Mr Justice Smedley when dismissing the ninth applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 30 December 1999. The ninth applicant’s renewed application for leave to appeal to the full Courts-Martial Appeal Court was dismissed on 10 April 2000.

On 25 March 1999, the tenth applicant was convicted by a GCM of two offences of making a threat to kill, one offence of disgraceful conduct and one offence of criminal damage. He was sentenced to nine months’ imprisonment and dismissal from the service. On 26 May 1999, the reviewing authority confirmed the GCM’s finding and sentence. In his advice to the reviewing authority, the Deputy Judge Advocate General endorsed the direction given by the judge advocate at the GCM and advised that the GCM had had before it evidence upon which it had been entitled to reach a guilty verdict. Mr Justice Wright, when dismissing the tenth applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 6 July 1999, commented that “there is no room for any argument that the conviction was in any way unsafe”. The tenth applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 10 April 2000.

On 1 October 1999, the eleventh applicant was convicted by a DCM of disobeying a lawful command which had been given on 20 November 1998. He had originally been charged with conduct prejudicial to good order and military discipline, but this charge was abandoned on 6 May 1999, when the eleventh applicant was charged with the offence of which he was convicted. He was sentenced to a severe reprimand and a fine of GBP 700. On 26 November 1999, the reviewing authority, having received the advice of the Judge Advocate General, confirmed the DCM’s finding and sentence. Mr Justice Holland, when dismissing the eleventh applicant’s application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court on 19 January 2000, specifically endorsed the Judge Advocate General’s advice. The eleventh applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 10 April 2000.

On 27 January 2000, the twelfth applicant was convicted by a DCM of five offences of indecent assault. He was sentenced to ten months’ detention and dismissal from the service. The reviewing authority failed to consider the twelfth applicant’s petition against conviction within the statutory time limit. Mr Justice Sullivan, when dismissing the twelfth applicant’s first application for leave to appeal against conviction to the Courts-Martial Appeal Court on 17 April 2000, commented that the judge advocate’s summing up at the DCM had been “careful and comprehensive” and considered that the new evidence submitted by the twelfth applicant did not make his conviction unsafe since it contained no declaration of truth, much of it was of “doubtful” relevance and no explanation had been given as to why the witness concerned had not been called earlier. The twelfth applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 23 June 2000.

On 27 September 2000, the thirteenth applicant was convicted by a DCM of assault occasioning actual bodily harm. He was sentenced to one year and fifty days’ detention and dismissal from the service. On 29 November 2000, the reviewing authority, having received advice from the Vice Judge Advocate General, confirmed the sentence imposed by the DCM. On 18 December 2000 Mr Justice Bennett refused the thirteenth applicant leave to appeal against sentence to the Courts-Martial Appeal Court. The thirteenth applicant’s renewed application for leave to appeal to the Courts-Martial Appeal Court was dismissed on 20 February 2001.

On 14 March 2000, the fourteenth applicant was found not guilty by a DCM of three offences of theft but pleaded guilty to a charge of absence without leave. He was sentenced to nine months’ detention and a reduction in rank. While the DCM was in progress, the officer in charge of administering the venue, who was a Lieutenant Colonel, said to three soldiers in the entrance hall to the court building words to the effect that “everyone who comes here is guilty”. Following the incident and before conclusion of the DCM, the fourteenth applicant applied to the judge advocate at the DCM for a re-trial, but this was refused on the basis that the words concerned had not been spoken to the members of the DCM and did not indicate any real danger of bias on the part of the DCM. On 19 April 2000, the Reviewing Authority confirmed the DCM’s finding and sentence. The fourteenth applicant’s appeal to the Courts-Martial Appeal Court was dismissed on 20 February 2001.

B. Relevant domestic law and practice

The Armed Forces Act 1996 (the “1996 Act”) came into effect on 1 April 1997, amending the Army Act 1955 (the “1955 Act”).

Under the 1996 Act, the initial decision whether or not to bring a prosecution is taken by the Higher Authority, who is a senior officer who must decide whether any case referred to him by the accused’s commanding officer should be dealt with summarily, referred to the prosecuting authority, or dropped. Once the Higher Authority has taken this decision, he has no further involvement in the case. Alternatively, a soldier who has been convicted by his commanding officer at summary proceedings of a minor offence may refuse to accept the punishment and elect trial by court martial.

Where the accused is a member of the army, the role of prosecutor is performed by the Army Prosecuting Authority (the “Prosecuting Authority”). Following the Higher Authority’s decision to refer a case to it, or the accused’s election of court martial following summary conviction by his commanding officer, the Prosecuting Authority has absolute discretion, applying similar criteria as 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 precisely what charges should be brought. In cases where the accused has elected trial by court martial following summary conviction, the Summary Dealing (Army) Regulations 1997, require him to be informed that the Prosecuting Authority may charge him for the purposes of the court martial with an offence different from that considered at summary stage. The Prosecuting Authority conducts the prosecution (1996 Act, Schedule I, Part II), which is brought on behalf of the Attorney General.

The Court Martial Administration Office (now the Army Court Service), independent of both the Higher Authority and the Prosecuting Authority, is responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. Its officers are appointed by the Defence Council. Before commencement of the court martial hearing, the power to dissolve it is vested in the responsible court administration officer.

Throughout the relevant time, a General Court Martial (“GCM”) was required to consist of a Permanent President of Courts Martial, not less than four serving military officers of at least three years’ military experience and a judge advocate. A District Court Martial (“DCM”) was required to consist of a Permanent President of Courts Martial, not less than two serving military officers of at least two years’ military experience and a judge advocate (section 84D of the 1955 Act as amended by the 1996 Act). The court administration officer, commanding officers of the accused, members of the Higher Authority, investigating officers and all other officers involved in inquiring into the charges concerned were all barred from selection to the court martial (section 84C(4) of the 1955 Act as amended by the 1996 Act). The Courts Martial (Army) Rules 1997 further provide that an officer serving under the command of: ( i ) the Higher Authority referring the case; (ii) the Prosecuting Authority; or (iii) the court administration officer are ineligible for selection. The Queen’s Regulations provide that a court martial is, so far as practicable, to be composed of officers from different units.

The post of Permanent President of Courts Martial (“Permanent President”) was first created in 1941. The post was suspended in 2000, around the time of a ruling by Assistant Judge Advocate Pearson on 6 March 2000 in a case called McKendry that the appointment of Permanent Presidents meant that courts martial did not have the necessary impartiality and independence for the purposes of Article 6 of the Convention. Permanent Presidents were selected from the ranks of serving army officers of suitable age and rank. Until around the end of 1996, Permanent Presidents of Court Martial held the rank of Major. Thereafter their rank was raised to Lieutenant Colonel. Legal qualifications or experience were not required. Their appointment was usually expected to be for a period in excess of three years and was almost without exception the officer’s last posting before his retirement from the army. The Military Secretary (a senior subordinate of the Adjutant General) had power to terminate the appointment of a Permanent President, but this has never happened in practice.

Judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years’ experience as an advocate or five years’ experience as a barrister. A judge advocate’s rulings on points of law are binding on the court and he or she delivers a summing up in open court before the court martial retires to consider its verdict. Once the court martial hearing has commenced, the power to dissolve it is vested in the judge advocate. The judge advocate has a vote on sentence, but not on verdict. Under the 1996 Act, the Judge Advocate General lost his previous role of providing general legal advice to the Secretary of State for Defence (Schedule I, Part III, sections 19, 25 and 27).

Each member of a court martial has 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.”

Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the President of the court martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote on verdict and sentence, in ascending order of seniority.

All guilty verdicts reached, and sentences imposed by, a court martial must be reviewed by the “reviewing authority” within prescribed time limits (section 113 of the 1955 Act as substituted by the 1996 Act). Although the ultimate responsibility rests with the Defence Council, the review is as a matter of practice generally delegated to a senior subordinate of the Adjutant General. 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, who has the right to present a petition to the authority. The reviewing authority may quash any guilty verdict and associated sentence or make any finding of guilt which could have been made by the court martial, and may substitute any sentence (not being, in the authority’s opinion, more severe than that originally passed) which was open to the court martial (section 113AA of the 1955 Act as substituted by the 1996 Act). The reviewing authority gives a reasoned decision and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court martial.

Equivalent provisions to the above govern courts martial in the Royal Air Force by virtue of the Air Force Act 1955, as amended by the 1996 Act, and rules made thereunder.

There is a right of appeal against both conviction and sentence of all courts martial to the Courts-Martial Appeal Court (a civilian court of appeal) (section 8 of the Courts-Martial (Appeals) Act 1968). An appeal will be allowed where the court finds that the conviction is unsafe, but dismissed in all other cases. The court has power, inter alia , to call for the production of evidence and witnesses whether or not produced at the court martial (section 28 of the Courts-Martial (Appeals) Act 1968).

Under section 34 of the Criminal Justice and Public Order Act 1994, certain inferences may be drawn from an accused’s failure to mention during police questioning any fact subsequently relied on in his defence, so long as the accused could reasonably have been expected to mention the fact concerned while being so questioned.

COMPLAINTS

The applicants complain that they have been denied a fair and public hearing by an independent and impartial tribunal established by law, contrary to Article 6 § 1 of the Convention.

All of the applicants, except the first and second applicants, also make separate complaints under Article 6 of the Convention according to the facts of their individual cases.

THE LAW

1. Specific complaints

All of the applicants, except the first, second and fourteenth applicants, make complaints under Article 6 § 1 of the Convention based upon the facts of their individual cases.

Article 6 § 1 provides (as relevant):

“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.”

The third applicant complains that his conviction was unsupported by the evidence, that the judge advocate was biased, that police investigations into the incident concerned were deficient and that the prosecuting officer wrongly submitted that the complainant was of good character.

The Court notes that both the reviewing authority and the Courts-Martial Appeal Court considered all of the third applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings.

The fourth and fifth applicants complain that they did not receive a fair trial due to the interventions, hostility and bias of the judge advocate at the DCM and that their convictions were against the weight of the evidence.

The Court recalls that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, it must consider the proceedings as a whole, including the decision of the appellate court (see, for example, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).

The Court notes that the Courts-Martial Appeal Court considered that the fourth and fifth applicants’ specific complaints about hostility and bias on the part of the judge advocate at the DCM were without merit. The Court sees no reason to disagree with that finding. Although it agrees with the Courts-Martial Appeal Court that certain of the judge advocate’s questions to the applicants went further than they should have done, it does not consider that the instances cited can give rise to any legitimate concern as to the impartiality of the judge advocate, nor that they are capable of rendering the DCM proceedings as a whole unfair.

The sixth applicant complains that his conviction was unsupported by the evidence, that the judge advocate misdirected the court martial, including as to the inferences which might be drawn under section 34 of the Criminal Justice and Public Order Act (“the 1994 Act”) from the applicant’s failure to mention certain facts during police interview, and that section 34 is itself unfair in that it denies the applicant the right to remain silent when questioned.

The Court notes that both the reviewing authority, following advice received from the Judge Advocate General, and the Courts-Martial Appeal Court dismissed the sixth applicants’ complaints about lack of evidence and misdirection by the judge advocate. The Court sees no reason to disagree with those findings.

In relation to the sixth applicant’s complaint about section 34 of the 1994 Act, the Court recalls that the “right to silence”, like the privilege against self-incrimination, lies at the heart of the notion of a fair procedure under Article 6 and that particular caution is required before a domestic court should invoke an accused person’s silence against him. However, it recalls also that the “right to silence” is not an absolute one.  Whether the drawing of adverse inferences infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-I, § 47).

As in the case of Averill v. the United Kingdom (judgment of 6 June 2000, ECHR 2000-IV), the Court notes that the sixth applicant’s failure to make reference to the incident concerned during police questioning did not expose him to the threat of penal sanction, and that the court martial was not obliged to draw adverse inferences from the applicant’s silence as to the incident. Rather, it did so only following the direction of the judge advocate and in exercise of the discretion conferred by section 34 of the 1994 Act. The Court notes also that the evidence against the applicant was strong and that the Judge Advocate General, in his advice to the reviewing authority, concluded that the sixth applicant had had “every opportunity” to mention the incident concerned during questioning.

As was the case in relation to the similar provision at issue in the Averill case (see § 49 of the above-mentioned judgement), section 34 of the 1994 Act prevents the hampering of police investigations by accused persons who take advantage of their right to silence by waiting until trial to spring exculpatory explanations, in circumstances where the accused has no reasonable excuse for earlier withholding the explanation.

In all the circumstances, the Court concludes that the drawing of an adverse inference against the sixth applicant in relation to his failure to mention the incident concerned during police questioning was not contrary to the requirements of Article 6 of the Convention.

The seventh applicant complains that his conviction was unsupported by the evidence and that the judge advocate erred in holding that the conviction did not amount to an abuse of process.

The Court notes that both the reviewing authority, following advice received from the Judge Advocate General, and the Courts-Martial Appeal Court considered the seventh applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings.

The eighth applicant complains that he was denied a fair trial because the proceedings before the GCM were an abuse of process and the sentence imposed was too severe.

The Court notes that both the reviewing authority, following advice received from an Assistant Judge Advocate General, and the Courts-Martial Appeal Court considered the eighth applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings.

The ninth applicant complains that his conviction was unsupported by the evidence and that summary proceedings conducted before the DCM took place were not recorded, thereby denying him an opportunity to test the credibility of a prosecution witness by reference to that witness’s previous testimony. He complains also that the judge advocate erred in rejecting his submission that the proceedings constituted an abuse of process and in failing to give the members of the DCM a clear direction in relation to the mental element of the offence of which he was charged.

The Court notes that both the reviewing authority, following advice received from the Vice Judge Advocate General, and the Courts-Martial Appeal Court considered the ninth applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings and does not consider that a failure to record summary proceedings which were in effect superseded by the ninth applicant’s DCM and which were in any event attended by the applicant himself can lead to the conclusion that the DCM proceedings themselves violated Article 6 § 1 of the Convention.

The tenth applicant complains that his conviction was unsupported by the evidence and was therefore unsafe.

The Court notes that both the reviewing authority, following advice received from the Deputy Judge Advocate General, and the Courts-Martial Appeal Court considered the tenth applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings.

The eleventh applicant complains that his conviction was unsupported by the evidence and that he was prosecuted for a different offence to that with which he had originally been charged and of which he was convicted at summary stage by his commanding officer. He complains also that the sentence imposed was too severe.

The Court notes that both the reviewing authority, following advice received from the Judge Advocate General, and the Courts-Martial Appeal Court considered the eleventh applicant’s specific complaints and dismissed them. It notes also that, pursuant to the Summary Dealing (Army) Regulations 1997 (see above), the eleventh applicant was required to be informed of the new charge and there is no indication that he was not so informed. The new charge was substituted on 6 May 1999, almost five months before the eleventh applicant’s court martial began, thus allowing him adequate time to prepare his defence. In all the circumstances, the Court sees no reason to disagree with the findings of the reviewing authority and the Courts-Martial Appeal Court.

The twelfth applicant complains that his conviction was unsupported by the evidence and that the Courts-Martial Appeal Court did not attribute sufficient weight to new evidence.

The Court notes that the Courts-Martial Appeal Court considered the twelfth applicant’s specific complaints and dismissed them, observing that the judge advocate’s summing up at the DCM had been careful and comprehensive and carefully considering the consequences of the new evidence submitted did not make the twelfth applicant’s conviction unsafe. The Court sees no reason to disagree with those findings, nor does it find any indication that the proceedings as a whole were unfair.

The thirteenth applicant complains that the sentence imposed upon him was too severe.

The Court notes that both the reviewing authority, following advice received from the Vice Judge Advocate General, and the Courts-Martial Appeal Court considered the thirteenth applicant’s specific complaints and dismissed them. The Court sees no reason to disagree with those findings.

The fourteenth applicant complains that the words spoken by the officer in charge of administering the court martial venue, to the effect that “everyone who comes here is guilty”, gave rise to a violation of Article 6 § 2 of the Convention, which provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court notes that the fourteenth applicant applied to the judge advocate for a retrial during the course of the DCM because of the words spoken and that this was refused on the ground that they did not disclose any real danger of bias on the part of the DCM itself. The Court sees no reason to disagree with the judge advocate’s conclusion and thus considers that any concerns as to independence and impartiality of the DCM as a result of the incident alone would lack objective justification. It follows that there is no reason to doubt that the fourteenth applicant was presumed innocent until proven guilty on the charges presented to the DCM.

In any event, the Court recalls that it is not a court of appeal from the domestic courts and cannot intervene to investigate allegations that they have reached the wrong decision on the evidence before them (see, for example, application no. 45738/99 Bullivant v. the United Kingdom , admissibility decision of 28 March 2000, unreported).

It follows that the specific complaints made by the third to fourteenth applicants are manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.

2. General complaints

All of the applicants complain that they have been denied a fair and public hearing by an independent and impartial tribunal established by law, contrary to Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of them to the respondent Government.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the the applicants’ general complaints that they have been denied a fair and public hearing by an independent and impartial tribunal established by law;

Declares inadmissible the remainder of each application.

Michael O’Boyle Matti Pellonpää Registrar President