THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35685/97 Simon MILLS against the United Kingdom and Germany

The European Court of Human Rights ( Third Section) , sitting on 5 December 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mr P. Kūris , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 April 1997 and registered on 21 April 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British citizen born in 1972 and is currently resident in Peterborough, the United Kingdom. He is represented before the Court by Mr John Mackenzie, a solicitor practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows. On 13 February 1994 the applicant, who was a Lance Corporal in the British Army stationed at Munster in Germany, was involved in a disturbance in a bar during which another British soldier was seriously assaulted. The German police intervened and arrested everyone involved but no proceedings were pursued by the German authorities.

The applicant was then interviewed by the military police on two occasions. Prior to and during the first interview, he received legal advice from a solicitor from Army Legal Aid. Prior to his second interview, he received legal advice on the telephone from a different officer from Army Legal Aid.

The applicant’s commanding officer decided to proceed by way of a “summary of evidence”. On 4-5 July 1994 a “summary of evidence” hearing was conducted by an officer from Army Legal Aid. Ten prosecution witnesses, all members of the troop of the soldier assaulted, gave evidence by reading statements. The applicant was accompanied for this procedure by a different ‘defending officer’ each day, the officer on the second day being legally qualified. Both officers came from the applicant’s regiment and were nominated by the applicant’s commanding officer. They did not take any part in the proceedings although the applicant cross-examined one witness himself. The evidence of the prosecution witnesses (including the cross-examination) was recorded by the officer from Army Legal Aid and later transmitted to the applicant’s commanding officer.

On 7 December 1994 the applicant was served with a record of the summary of evidence by the Unit Adjutant. On 8 December 1994 the applicant was charged (pursuant to section 70 of the Army Act 1955) with wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. He was formally remanded for trial by general court-martial by his commanding officer on the same day.

On 12 January 1995 the applicant attended for consultation with Lt McNeil , a solicitor at Army Legal Aid. Lt McNeil would have received the summary of evidence before the interview. The purpose of the interview was for Lt McNeil to take a proof of evidence from the accused, consider all the evidence with the applicant and assemble the necessary documents to brief civilian counsel. Lt McNeil would have explained to the applicant the charge sheet, would have discussed with the applicant the relevant law and facts and would have given him advice as to the weight of the evidence. Lt McNeil would have considered whether any other evidence should be obtained for the defence and offered any other assistance to the applicant if he wanted it pending the instruction of civilian counsel.

On 16 January 1995 the applicant was granted legal aid by the military authorities for counsel who was instructed by Army Legal Aid on the same day. According to the “information for trial” provided by Lt McNeil , the applicant requested a specific civilian solicitor. That solicitor was not available and the applicant agreed to be represented by counsel recommended by that solicitor. On 22 March 1995 the applicant met with counsel in London. In a document entitled “defence information” signed on 4 April 1995 by the applicant’s counsel, the latter indicated that he would be ready for trial on 24 April 1995.

The applicant’s counsel travelled to Germany for the court-martial on 23 April 1995. The court-martial took place in Germany on 24-27 April 1995. The applicant was found guilty as charged and he was sentenced to 4 years’ imprisonment, dismissal from the service and to reduction to the ranks. On 3 June 1995 the conviction and sentence were confirmed by the Confirming Officer and on 8 September 1995 the applicant’s petition to the Army Board, submitted on the applicant’s behalf by counsel, was rejected.

From January 1996 the applicant was represented by a civilian solicitor. On 12 January 1996 the applicant applied to a single judge of the Courts-Martial Appeals Court (“CMAC”) for leave to appeal to that court. He submitted, that his own counsel had failed to call a witness for the defence (an army officer) as instructed by the applicant. On 1 July 1996 the applicant was granted leave to appeal, together with legal aid. Before the full CMAC, the applicant changed his grounds of appeal, which grounds included the submission that army legal aid had not been granted early enough to allow the defence case to be fully investigated without delay.

The CMAC concluded that the system for granting legal aid in cases such as the present was not such as to give rise to unfairness. It noted that the preparation of the defence case was done in part by the Army Legal Aid office and by the applicant’s defending officer, that the applicant had many opportunities to request that body and his defending officer to make enquiries and to interview witnesses and that, while legal aid was limited to counsel, the Army Legal Aid office carried out, in practice, the role of solicitor. It observed that the applicant had, in addition, “independent legal advice” from a legally qualified officer on the second day of the summary of evidence procedure, of his assistant defending officer from then until the court-martial and of counsel once instructed. It considered it clear that appropriate investigations had been carried out because a number of witnesses were called on the applicant’s behalf, namely, a German police officer, three army witnesses and a medical expert witness called over from Cyprus at the applicant’s request. The court considered that, if it had been thought appropriate for steps to be taken to see if there were independent witnesses to the incident, there was no reason why they should not, and could not, have been made on the applicant’s behalf. The appeal was rejected by judgment delivered on 8 November 1996.

B. Relevant domestic law and practice

The law and procedures in respect of army courts-martial were contained in the Army Act 1955 (“the 1955 Act”), the Rules of procedure (Army) 1972 (“the 1972 Rules”) together with the Queen’s Regulations. The principal law and procedures are set out in the Findlay and Coyne judgments of the Court (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, and Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V). Following the Court’s judgment in the Findlay case, certain provisions of the 1955 Act have been amended by the Armed Forces Act 1996, which Act came into force on 1 April 1997. The following provisions, applicable prior to the entry into force of the 1996 Act, are also relevant.

1. Jurisdiction

Jurisdiction issues between the United Kingdom military authorities and the German authorities in matters concerning servicemen stationed in Germany are governed by the North Atlantic Treaty Organisation Status of Forces Agreement 1951. Although the German and United Kingdom authorities retain concurrent jurisdiction in such matters, in practice the German authorities waive jurisdiction.

2. Investigation of charges

Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and, as soon as may be, either proceedings shall be taken for punishing his offence or he shall be released from arrest. Section 76 of the 1955 Act provides that any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person’s commanding officer and, before any action is taken, the commanding officer must investigate the charge.

When a commanding officer investigates a charge, he must choose whether to hear the evidence himself orally or cause the evidence to be reduced to writing (Rule 7 § 1 of the 1972 Rules). Evidence may be reduced to writing in the form of a summary of evidence taken in accordance with Rule 9 or an abstract of evidence made in accordance with Rule 10 (Rule 7 § 2). The summary of evidence is obligatory if, inter alia , the accused requires it or if the commanding officer is of the opinion that the interests of justice require it (Rule 7 § 2 of the 1972 Rules).

A summary of evidence is taken by the commanding officer (or another officer designated by the commanding officer) in the presence of the accused. Each prosecution witness gives evidence orally or the commanding officer reads a witness statement (unless the accused requires that witness to give evidence orally). The accused may cross-examine prosecution witnesses. The accused is asked after the evidence is given whether he or she wishes to say anything and is cautioned that, while not obliged to do so, he may give evidence on oath and any evidence given will be taken down in writing and may be given in later evidence. An accused can call witnesses, who give their evidence orally, and neither the accused nor the defence witnesses are subject to cross-examination. The evidence of each witness (other than the accused) who gives evidence orally is recorded in writing, read over to the witness and signed by the witness. At the conclusion of the taking of the summary of evidence, the competent officer certifies it (Rule 9 of the 1972 Rules).

The accused is then served, prior to his being remanded, with a record of the summary of evidence. The prescribed steps for sending a case for trial by court-martial include, according to Rule 13 of the 1972 Rules, sending to the higher authority a draft charge sheet, the summary of evidence, a statement of character together with the service record of the accused, and a recommendation as to how the charge should be proceeded with (for example, by district or general court-martial).

3. Assistance and legal advice

According to Queen’s Regulations 6.0511, the commanding officer of an accused is to ensure that the accused receives, and where necessary is provided with explanations of, a copy of the pamphlet prepared by the military authorities entitled “The rights of a soldier charged with an offence under the Army Act 1955” (revised 1987). That pamphlet points out that the accused may consult the manual of military law and the Queen’s Regulations on request and that, if it becomes likely that an accused is to be brought to trial by court-martial, he may choose some suitable and available person in the army to advise him. If necessary, his commanding officer will appoint an officer for this purpose (§ 1 of the pamphlet and Paragraph 6.085 of the Queen’s Regulations). The pamphlet points out at paragraph 26 that “the soldier may apply for legal aid, with a view to being defended by a civilian lawyer, once his commanding officer has remanded him for trial by court-martial”. Reference is made to Queen’s Regulations 6.094 and to Annex D to Chapter 6 of those regulations.

When a commanding officer formally remands an accused for trial by court-martial, he is obliged to inform the accused that he may apply for legal aid if the case falls within the provisions of Annex D (paragraph 6.095 of the Queen’s Regulations). Annex D includes detailed instructions regarding legal aid for the defence in courts-martial. This annex has been revised from time to time, and the provisions described below were applicable at the relevant time.

Legal aid is available for civilian professional representation to persons of all ranks who “are to tried by court-martial” (Annex D, § 1). The grant of legal aid is subject to the accused making a down-payment before the court-martial as may be required and the accused’s agreement to pay a contribution towards the cost of legal aid as may be assessed after the trial (Annex D, § 3). The general principles to be followed in deciding whether the case justified the provision of legal aid (Annex D, § 4) were that legal aid would have been provided if the case had been brought in the criminal courts of the United Kingdom or, where the accused was being brought to trial by court-martial, an officer with legal qualifications was to prosecute, points of legal difficulty were involved or the expert examination of witnesses was required.

Annex D to Chapter 6 of the Queen’s Regulations sets out examples of cases where legal aid will probably be granted, subject to the fulfilment of the requirements of the Annex. These examples included assaults with aggravation (Annex D, § 5). The only matter for which legal aid may, at the discretion of the appointed officer, be granted prior to the remand of an accused for court-martial is for assistance by a lawyer at a summary of evidence where the gravity of the offence charged or the complexity of the case so warrants (Annex D, § 8A).

Where one or more of the principles enumerated above are likely to apply, the commanding officer is to call the attention of the accused to Annex D and ensure that the provisions are explained to him by an officer of the unit. The accused will be asked if he wishes to apply for the services of a defending officer, to apply for the services of a legally qualified officer, to instruct his own lawyer, in which case he will be responsible for the costs, or to apply for legal assistance under the terms of Annex D. If the applicant states that he does not wish to apply for legal aid, a certificate to this effect is to be completed by the applicant’s commanding officer and forwarded to the convening officer. If the applicant, on the contrary, applies for legal aid, he is to be informed that it will be granted if the appointed officer considers that legal assistance is necessary and upon the applicant signing the undertaking to pay the contribution fixed by the appointed officer (Annex D, § 9).

There is no objection to an applicant who applies for legal aid nominating his own lawyer provided that that lawyer accepts the normal conditions regarding fees and that no extra expense to the public is involved. No legal fees for work done before legal aid is formally granted can be recovered under the Army scheme (Annex D, § 11).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he did not have a fair and public hearing by an independent and impartial tribunal established by law.

He mainly contests the independence and impartiality of the court-martial, pointing to the institutional connection between the members and officers of the court-martial and the convening officer who was closely connected to the prosecution. He also considers that the court-martial was not “established by law” because the “machinery” by which the convening officer and the reviewing authorities were nominated was not governed by any predictable statutory provision, because that procedure was wholly arbitrary and because the court-martial’s decision is subject to review by the confirming officer and by other administrative and anonymous bodies.

He also complains under Article 6 § 3(b) of the Convention that he did not have adequate time and facilities to prepare his defence given the delay in granting legal aid and the grant of legal aid for counsel (a barrister) only.

He further complains under Article 6 § 3(c) of the Convention about the delay in granting legal aid, until he was remanded for court-martial prior to which time the applicant was without professional legal representation while the crucial summary of evidence procedure took place. He also repeats in this context the submissions made by him under Article 6 § 3 (b).

Moreover, he complains under Article 6 § 3 (d) of the Convention that the British military authorities lacked any power to compel the attendance of German civilian witnesses.

Furthermore, he complains under Article 13 of the Convention that the United Kingdom has not incorporated the Convention into domestic law.

Finally, he complains that the German authorities have been aware of the defects in the British court-martial system since the Commission’s Report in the above-cited Findlay case (Commission report of 5 September 1995). Despite this, the German authorities chose to waive jurisdiction in this case in favour of the British military authorities.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that he did not have a fair and public hearing by an independent and impartial tribunal established by law. Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

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

He mainly contests the independence and impartiality of the court-martial, pointing to the connection between the members and officers of the court-martial and the convening officer who was closely connected to the prosecution. He also considers that the court-martial was not “established by law” given that the “machinery” by which the convening officer and the reviewing authorities were nominated was not governed by any predictable statutory provision and was wholly arbitrary, and because a court-martial’s decision is subject to review by the Confirming Officer and by other administrative and anonymous bodies.

The Government accept that, in the light of the above-cited Findlay and Coyne judgments, the court-martial failed to satisfy the requirements of Article 6 § 1 as to independence and impartiality and that there has been a violation of Article 6 § 1 of the Convention in this respect.

The Court considers that these complaints of the applicant raise serious issues under Article 6 § 1 of the Convention which require determination on the merits. It follows that they cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints inadmissible has been established.

2. The applicant also complains under Article 6 § 3 (b) and (c) of the Convention about the delay in granting legal aid and about the limitation of legal aid to counsel (a barrister) only. Prior to the grant of legal aid, including for the summary of evidence procedure, he submits that he did not have adequate professional legal representation. The Court considers that these submissions should be considered under Article 6 § 3 (c), which reads as follows:

“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; …”

As to the advice and assistance available to the applicant prior to his being granted legal aid, the Government point out that the applicant exercised his right to legal advice on his arrest: he had legal advice from an officer from Army Legal Aid before and during his first interview with the military police and he had telephone legal advice from another officer from Army Legal Aid before his second interview. That advice was available up to his being awarded legal aid, as was the assistance of legally qualified officers from Army Legal Aid after the grant of legal aid. He had the further right to apply for legal aid for the summary of evidence procedure, pursuant to paragraph 8A of Annex D to Chapter 6 of the Queen’s Regulations, but he did not make any such request. These rights were pointed out in the pamphlet entitled “The rights of a soldier charged with an offence under the Army Act 1955 (revised 1987) which the commanding officer must ensure is made available, and where necessary explained, to all soldiers charged with an offence. Apart from the summary of evidence, there were no other pre-remand matters which concerned the applicant or would have reasonably required legal aid to have been granted (nor does the applicant suggest that there were). In any event, the Government maintain that, other than (in certain circumstances) the summary of evidence, there is no need for legal aid until an accused is remanded for court-martial.

The Government go on to point out that legal aid was then granted soon after the applicant’s remand for trial by court-martial and that counsel was instructed over three months before the court-martial hearing. Counsel could have called upon the applicant’s defending officer or on legally qualified personnel from Army Legal Aid who would have assisted if asked to do so. The Government consider it clear that investigations were made on the applicant’s behalf since a number of defence witnesses were called. At no stage did the applicant’s counsel indicate that there was inadequate time or facilities to prepare for the trial and, indeed, in the document entitled “defence information” signed on 4 April 1995, counsel stated that he would be ready for trial on 24 April 1995. No subsequent application was made to the court-martial for an adjournment, nor was there any suggestion by counsel to the court-martial of a lack of time and facilities.

The applicant contends that Army Legal Aid officers are unable to provide adequate advice to soldiers due to the conflict of interest created by their position as serving army officers. He considers that that conflict of interest leads them to advise a defendant faced with questioning by the military police in an inappropriately rigid manner. They advised the applicant not to answer questions whereas court-martial members, being more sophisticated than an average jury, will be looking to see what explanation the defendant gave during the military police interview. If he had had truly independent advice, it is likely he would have been advised that it was essential to answer the questions in interview and put his account on the record at the first opportunity. The applicant also maintains that the officers from Army Legal Aid did not ensure that suitable enquiries were carried out to prepare his case.

Moreover, it is not sufficient to provide legal aid for counsel only, even assisted by a defending officer. A case needs to be prepared by a solicitor prior to the court-martial and providing simply counsel for the court-martial is inadequate. The defending officers (apart from the officer who attended on the second day of the summary of evidence) had no legal qualifications and were appointed by the applicant’s commanding officer.

The Court notes the nature of the charge against the applicant (wounding with intent contrary to section 18 of the Offences Against the Person Act 1861) and the applicant’s sentence (including four years’ imprisonment). The Court considers that the proceedings involved the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention ( Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports 1997-V, §§ 32-33, with further references).

The Court also recalls that an accused has a right to be given free legal assistance throughout the proceedings, including the pre-trial stage, if he has insufficient means to pay for legal assistance and if the “interests of justice” so require ( Quaranta v. Switzerland judgment of 24 May 1991, Series A no. 205, p. 16, § 27) and that account must be taken of the entirety of the proceedings conducted in the domestic legal order (Grainger v. the United Kingdom judgment of 28 March 1995, Series A no. 174, § 44). While the authorities responsible for granting free legal assistance and appointing defence counsel must ensure that the latter is capable of effectively defending the accused ( Artico v. Italy judgment of 13 May 1980, Series A no. 37, §§ 33 and 35), there is no reason to consider that counsel alone cannot provide such effective assistance (no. 4681/70, Murphy v. the United Kingdom, 43 CD 1).

The Court notes that, prior to the grant of legal aid, legal advice was available to the applicant from Army Legal Aid for his interviews with the military police. A non-legally qualified defending officer accompanied the applicant during the first day of the summary of evidence procedure and a legally qualified defending officer, the second day. After the grant of legal aid, the applicant had available to him the assistance of a defending officer (not legally qualified) and was represented by counsel who was briefed three months prior to the court-martial. Assistance and legal advice were available from legally qualified officers of Army Legal Aid from the moment of the applicant’s arrest until his court-martial. The question is whether, given this assistance and legal advice, the applicant had effective representation within the meaning of the above-cited Artico judgement (at § 33). The applicant does not claim that any negative inferences were expressly drawn by the court-martial from his silence.

Prior to the grant of legal aid, the applicant refers to two procedures only for which he claims he required further assistance and legal advice, namely, the military police interviews and the summary of evidence procedure.

As to the military police interviews and the applicant’s submission that the advice of the officers from Army Legal Aid was inappropriate as a result of their conflict of interest, the Court does not consider that the advice given to the applicant for those interviews, which was to maintain his silence, demonstrates in any way that it constituted less than effective assistance.

As to the summary of evidence, the Court notes that the applicant could have applied for legal aid for this procedure but did not. The Court recalls that, where a system of legal aid exists which an accused could have used and but did not use or show that he wished to, he cannot complain in respect of this part of the proceedings of a violation of Article 6 § 3(c) of the Convention, as the individual himself is considered responsible for the consequences of failing to exercise a right ( Biondo v. Italy, application no. 8821/70, Commission report of 8 December 1983, Decisions and Reports (DR) 64, p. 5, and application no. 31145/96, Wilkinson v. the United Kingdom, Commission decision of 1 July 1998, unpublished). It is true that the pamphlet, to which the Government refer, states that legal aid is available once an accused is remanded for court-martial, but the Court considers that the applicant was provided with sufficient information and facilities to allow him to understand his rights in this respect – the pamphlet referred to Annex D to Chapter 6 of the Queen’s Regulations, which document details the entitlement to apply for legal aid for the summary of evidence procedure. The pamphlet also points out that those regulations should be made available on request and, if in doubt, the applicant could have been advised by Army Legal Aid as to his entitlements in this respect.

The applicant then argues that legal aid for counsel only was insufficient. The Court notes that legal aid was granted on 16 January 1995 and counsel was briefed on the same day. While this was over a month after the applicant’s remand, he does not suggest that he required legal advice for a particular procedure during that period. Counsel was briefed over three months before the court-martial hearing. During that three month period, counsel had the assistance of the applicant’s defending officer and of legally qualified personnel in Army Legal Aid available to him, which latter body was described by the CMAC as carrying out the role of a solicitor in the case. Counsel also met the applicant one month prior to his court-martial and there is no evidence or suggestion of any difficulties of communication between the applicant, his defending officer, Army Legal Aid and counsel.

The Court also notes that that the applicant was not confined to the choice of defending officer made for him by his commanding officer. The pamphlet outlines in paragraph 1 that the Queen’s Regulations provide that if it becomes likely that an applicant is to be brought to trial by court-martial, he may choose some suitable and available person in the army to advise him. It is only if it is “necessary” that the defending officer will be appointed for the applicant. The applicant does not submit that he made any specific request as to the defending officer to assist him.

The Court observes that a number of witnesses were called on the applicant’s behalf including a German police officer, three army witnesses and a medical expert witness from Cyprus. Although he appealed to the single judge of the CMAC on the basis that his counsel failed to call a further army witness, he did not pursue this ground of appeal to the full CMAC. Counsel was entitled to cross-examine prosecution witnesses during the court-martial. The applicant does not dispute the Government’s submission that no request was made for an adjournment during the court-martial on the basis that the defence had insufficient time or facilities to prepare the defence, counsel having indicated on 4 April 1995 that he was ready for trial. Finally, the applicant’s petition to the Army Board was drafted by counsel and his civilian solicitor made the application to the single judge and to the full CMAC, which court considered in detail and rejected his complaint that the grant of army legal aid for his court-martial was inadequate and led to a material unfairness.

In such circumstances, the Court finds the applicant’s complaints under Article 6 § 3 (c) of the Convention are unsubstantiated. Accordingly, this part of the application is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains under Article 6 § 3 (d) of the Convention that the British military authorities lacked any power to compel the attendance of German civilian witnesses. Article 6 § 3 (d) reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights: …

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …”

The Court notes that the applicant does not refer to any specific German civilian witness whom he called to give evidence but whose attendance he was unable to ensure. In addition, no submission was made to this effect by counsel for the applicant to the court-martial, to the Army Board or to the CMAC. Accordingly, and even assuming the applicant can be considered to have exhausted domestic remedies in this respect, the Court finds the applicant’s complaints under Article 6 § 3 (d) of the Convention to be unsubstantiated. This part of the application is also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

4. Furthermore, the applicant complains under Article 13 of the Convention that the United Kingdom has not incorporated the Convention into domestic law. He does not invoke Article 13 in conjunction with any specific Article of the Convention. Article 13, in so far as relevant, reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority…”

However, the Court recalls that Article 13 does not require the incorporation of the Convention into domestic law (Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 42, § 12). Consequently, this complaint is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

5. Finally, the applicant complains that the German authorities were aware of the defects in the British court-martial system since the Commission’s Report in the above-cited Findlay case (Commission report of 5 September 1995). He argues that, despite this, the German authorities chose to waive jurisdiction in this case in favour of the British military authorities. The applicant does not invoke a specific Article of the Convention in this respect.

The Court notes that, while the precise date on which the German authorities decided to waive jurisdiction is not clear, the facts of the case clearly demonstrate that any such decision was taken prior to the adoption of the report by the Commission in the Findlay case in September 1995, which report was not made public, in any event, until a number of months after its adoption. Prior to the publication of the report, the Court considers there was no reason for the German authorities to consider whether the applicant’s trial by British court-martial could constitute a “flagrant denial of justice” within the meaning of the Drozd and Janousek v. France and Spain judgment (26 June 1992, Series A no. 240, § 110).

This complaint is therefore also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares admissible, without prejudging the merits, the applicant ’s complaints against the United Kingdom that he did not have a fair hearing by an independent and impartial tribunal established by law;

Declares inadmissible the remainder of the application.

S. Dollé J .-P. Costa Registrar President