Information Note on the Court’s case-law 10

September 1999

Moore and Gordon v. the United Kingdom - 36529/97 and 37393/97

Judgment 29.9.1999 [Section III]

Article 6

Criminal proceedings

Article 6-1

Independent tribunal

Independence and impartiality of courts-martial: violation

[This summary also covers the judgment of the case Smith and Ford v. the United Kingdom , nos. 37475/97 and 39036/97, 29 September 199 7.]

Facts : Each of the applicants was convicted by a court-martial while serving in the armed forces (the Air Force in the first case and the Army in the second). Their subsequent petitions and appeals, as far as the Courts-Martial Appeal Court (the full c ourt in all cases except Mr Moore's), were unsuccessful. The applicants complained that the courts-martial which tried them were not independent and impartial, referring in particular to the role of the "convening officer".

Law : Article 6 § 1 - In view of the potential or actual penalties together with the nature of the charges against the applicants, the Court considered that the proceedings against each had determined criminal charges within the meaning of this provision. It recalled that it had already f ound in the Findlay v. the United Kingdom judgment ( Reports of Judgments and Decisions 1997-I) that a general court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality in view, in particular, of the central role of the convening officer, who was central to the applicant's prosecution and was closely linked to the prosecution authorities. Furthermore, in the Coyne v. the United Kingdom judgment ( Reports 1997-V) the Court had found a district court-mar tial convened pursuant to the Air Force Act 1955 to have similar deficiencies and had concluded that the organisational defects were such that they could not be corrected by any subsequent review procedure. Violations had similarly been found in a series o f further cases and the Court found no reason to distinguish the present cases. The courts-martial which dealt with the applicants' cases were not independent and impartial and could not guarantee them a fair trial.

Having reached this conclusion, it was u nnecessary to examine further specific complaints about the fairness of the proceedings.

Conclusion : violation (unanimous).

Article 41: As the applicants had not responded to the Court's request that they submit their claims for just satisfaction, it was unnecessary to apply this provision.

© Council of Europe/European Court of Human Rights This summary by the Registry does no t bind the Court.

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