DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36529/97 by Jonathan MOORE

and

Application no. 37393/97 by Garrick GORDON

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 2 March 1999 as a Chamber composed of

Mr J-P. Costa President ,

Sir Nicolas Bratza ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, 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 10 June 1997 by Jonathan Moore against the United Kingdom and registered on 16 June 1997 under file no. 36529/97;

Having regard to the application introduced on 7 August 1997 by Garrick Gordon  against the United Kingdom and registered on 18 August 1997 under file no. 37393/97;

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

Having regard to the letter from the respondent Government on 21 August 1998 in which they confirmed that they did not contest the admissibility of the applications;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are both British citizens. The first applicant was born in 1973 and lives in Scotland. The second applicant was born in 1953 and resides in Cornwall. Both 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 July 1996 the applicant, who was a senior aircraftman in the Royal Air Force, was charged (pursuant to section 70 of the Air Force Act 1955) with assault occasioning actual bodily harm contrary to the Offences Against the Person Act 1861 and, alternatively, with common assault contrary to the Criminal Justice Act 1988.

The convening officer, by order dated 11 July 1996, convened a district court-martial. On 7 August 1996 the applicant was found guilty of common assault and was fined £400. The conviction and sentence having been confirmed and promulgated by the confirming officer, the applicant petitioned the Defence Council against conviction and sentence on 23 September 1996. He challenged his conviction on the basis that the evidence against him was insufficient and contradictory and he contested his sentence on the grounds that the fine was excessive and that the court-martial had not taken into account that he had been assaulted by the alleged victim. By letter dated 8 January 1997 the applicant's representative was informed of the decision (taken by the Air Force Board) to reject this petition.

On 9 January 1997 the applicant applied to a single judge of the Courts-Martial Appeal Court for leave to appeal to that court against conviction making similar submissions as before the Defence Council. On 8 May 1997 this application was rejected, the single judge considering that the evidence was fairly summarised by the judge advocate and that it was open to the court-martial to convict despite certain contradictions in the evidence regarding some (but not all) of the events.

B. Particular circumstances of the second applicant’s case

On 15 April 1996 the applicant, who was a Sergeant in the Royal Air Force, was charged with one charge of conduct to the prejudice of good order and air force discipline contrary to section 69 of the Air Force Act 1955 and with five charges of disgraceful conduct of an indecent kind contrary to section 66 of the Air Force Act 1955.

The convening officer, by order dated 22 May 1996, convened a district court-martial. On 12 July 1996 the court-martial found the applicant guilty of two charges of disgraceful conduct of an indecent kind and he was sentenced to be reduced to the rank of senior aircraftman . On 19 September 1996 the confirming officer confirmed and promulgated the conviction and sentence.

On 10 October 1996 the applicant petitioned the Defence Council against conviction and sentence. On 29 October 1996 he also applied to a single judge of the Courts-Martial Appeal Court for leave to appeal to that court against conviction making similar submissions as before the Defence Council.

By letter dated 11 February 1997 the applicant's representative was informed of the decision (taken by the Air Force Board) to reject the petition. On 17 March 1997 the single judge rejected his application for leave to appeal. The applicant's subsequent renewal of the application for leave to appeal against conviction to the full Courts-Martial Appeal Court was rejected by that court on 17 July 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).

COMPLAINTS

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. The first applicant also submits that he was denied a voice in the choice of venue for his court-martial.

PROCEDURE

The applications were introduced on 10 June 1997 and 7 August 1997 and registered on 18 August 1997 and 18 August 1997, respectively.

On 20 May 1998 the Commission decided to communicate the applications to the respondent Government.

The Government, by letter dated 21 August 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 first applicant further submits that he had no say in the choice of venue for the court-martial hearing. The Government accept, in their letter of 21 August 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, air force district courts-martial were convened pursuant to the Air Force Act 1955 to try the applicants. The first applicant was found guilty of common assault contrary to the Criminal Justice Act 1988 and the second applicant was found guilty of disgraceful conduct of an indecent kind contrary to section 66 of the Air Force Act 1955.

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.

S. Dollé     J.P. Costa

           Registrar President