DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37475/97

by David SMITH

Application no. 39036/97

by Darren FORD

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 30 March 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mrs H.S. Greve ,

Mr K. Traja , J udges ,

with Mr. M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 August 1997 by David SMITH against the United Kingdom and registered on 25 August 1997 under file no. 37475/97;

Having regard to the application introduced on 10 December 1997 by Darren FORD  against the United Kingdom and registered on 19 December 1997 under file no. 39036/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the letter submitted by the respondent Government on 20 November 1998 indicating that they were not contesting the admissibility of the above applications, while reserving their right to make further submissions on the merits;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are both British citizens. The first applicant was born in 1946 and lives in Doncaster. The second applicant was born in 1974 and resides in Gloucestershire. Both applicants are represented before the Court by Mr Gilbert Blades, a lawyer practising in Lincoln. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the first applicant’s case

In May 1995 the applicant, who was a Captain in the British army, was charged with seven counts of conduct to the prejudice of good order and military discipline contrary to section 69 of the Army Act 1955 and with one count of disobeying a lawful command contrary to section 34 of that Act.

The Convening Officer, by order dated 25 October 1995, convened a general court-martial. On 9 November 1995 the court-martial found the applicant guilty of four offences contrary to section 69 and of one offence contrary to section 34 of the 1955 Act. He was sentenced to be dismissed from the army. The Confirming Officer confirmed the conviction and sentence which were promulgated on 21 February 1996.

The applicant then petitioned the Defence Council against conviction and sentence. By letter dated 20 June 1996 the applicant's representatives were informed of the decision (taken by the Army Board) to reject this petition.

On 13 July 1996 the applicant applied to the single judge of the Courts-Martial Appeal Court for leave to appeal to that court against conviction. His application was rejected on 24 October 1996. His renewed application for leave to appeal was rejected by the full Courts-Martial Appeal Court on 26 March 1997.

B. Particular circumstances of the second applicant’s case

In May 1996 the applicant, who was a soldier in the British army, was charged, (pursuant to section 70 of the Army Act 1955) with three counts of common assault contrary to the Criminal Justice Act 1988. He was also charged with using threatening language to a superior officer and with two counts of disobedience to standing orders contrary to section 33(1)(b) and section 36(1), respectively, of the 1955 Act.

The Convening Officer, by order dated 2 September 1996, convened a district court-martial and on 13 September 1996 the court-martial found the applicant guilty as charged. He was sentenced to six months imprisonment.

On 14 November 1996 the applicant petitioned the Defence Council against conviction (as regards the assault and threatening language convictions) and against sentence (as regards all convictions). By letter dated 20 December 1996 the applicant's representatives were informed of the decision (taken by the Army Board) to reject this petition.

On 2 January 1997 the applicant applied to the single judge of the Courts-Martial Appeal Court for leave to appeal against conviction to that court and this application was granted on 20 March 1997. His appeal to the full Courts-Martial Appeal Court was rejected by that court on 13 October 1997.

C. Relevant domestic law and practice

The relevant domestic law and practice is outlined in detail in the Court’s judgments in the Findlay and Coyne cases (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I no. 30, pp. 272-276, §§ 32-57 and Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V no. 49, pp. 1848-1853, §§ 20-50).

Section 69 of the Army Act 1955 provides that any person subject to army law who is guilty of any conduct or neglect to the prejudice of good order and army discipline shall, upon conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment for which the 1955 Act provides.

COMPLAINTS

Both applicants complain under Article 6 § 1 of the Convention that they were denied a fair and public hearing by an independent and impartial tribunal established by law.

PROCEDURE

The applications were introduced on 18 August 1997 and 10 December 1997 and registered on 25 August 1997 and 19 December 1997, respectively.

On 10 September 1998 the Commission decided to communicate the applications to the respondent Government.

The Government, by letter dated 20 November 1998, stated that they did not have any observations to make on the admissibility of the applications in light of the above-cited judgment of the Court in the Findlay case.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the cases fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants complain under Article 6 § 1 of the Convention that they were denied 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:

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

The applicants mainly argue that their courts-martial lacked independence and impartiality and that the proceedings against them were consequently unfair. The Government accept, in their letter of 20 November 1998, that the cases raise issues similar to those in respect of which the Court found a violation of Article 6 § 1 in the above-cited Findlay judgment and they have, therefore, no observations on the admissibility of these aspects of the application.

The Court recalls that, in the Findlay and Coyne cases, it found that an army general court-martial and an air force district court-martial, respectively, did not constitute independent or impartial tribunals. The Commission also concluded in its Reports in those cases that a court-martial found to lack independence and impartiality could not, consequently, guarantee a fair trial (Findlay v. the United Kingdom judgment, Comm. Report, § 108 and Coyne v. the United Kingdom judgment, Comm. Report, §. 80). The Court notes that, in the present cases, army district and general courts-martial were convened pursuant to the Army Act 1955 to try the applicants. The first applicant was found guilty of, inter alia , four offences contrary to section 69 of the 1955 Act, which section provides for a potential penalty of two years imprisonment. The second applicant was found guilty of , inter alia , common assault contrary to the Criminal Justice Act 1988 and was sentenced to six months imprisonment.

In view of the submissions of the parties, the Court considers that the applications cannot be dismissed as manifestly ill-founded within the meaning of Article  35 § 3 of the Convention. No other ground for declaring the applications inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATIONS ADMISSIBLE , without prejudging the merits of the cases.

M. O’Boyle     J.P. Costa

           Registrar President