RESOLUTION DH (98) 11

CONCERNING THE JUDGMENT

OF THE EUROPEAN COURT OF HUMAN RIGHTS

OF 25 FEBRUARY 1997

IN THE CASE OF FINDLAY AGAINST THE UNITED KINGDOM

(Adopted by the Committee of Ministers on 18 February 1998

at the 618th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Conven ­ tion for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Findlay case delivered on 25 February 1997 and transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in an application (No. 22107/93) against the United Kingdom, lodged with the European Commission of Human Rights on 28 May 1993 under Article 25 of the Convention by Mr Alexander Findlay, a British national, and that the Commission declared admissible the complaints concerning the independence and impartiality of a court-martial and the fairness of the proceedings before it;

Recalling that the case was brought before the Court by the Commission on 8 December 1995;

Whereas in its judgment of 25 February 1997 the Court, unanimously :

– held, that there had been a violation of Article 6, paragraph 1, of the Convention;

– dismissed the claim for pecuniary damage;

– held, that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

– held that the respondent State was to pay the applicant, within three months, 23 956.25 pounds sterling less 26 891 French francs, to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment for costs and expenses, and that simple interest at an annual rate of 8 % should be payable from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention ;

Having invited the Government of the United Kingdom to inform it of the measures which had been taken in consequence of the judgment of 25 February 1997, having regard to the United Kingdom’s obligation under Article 53 of the Convention to abide by it ;             

Whereas, during the examination of the case by the Committee of Ministers, the Government of the United Kingdom gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 28 April 1997, within the time-limit set the Government of the United Kingdom paid the applicant the sums provided for in the judgment of 25 February 1997,

Declares, after having taken note of the information supplied by the Government of the United Kingdom, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 11

Information provided by the Government of the United Kingdom

during the examination of the Findlay case

by the Committee of Ministers

The provisions in the Army Act 1955 which set out the procedure for the court-martial in this case were amended by the Armed Forces Act 1996 which entered into force on 1 April 1997 (see inter alia the Court’s judgment, paragraphs 32 and 52-57).

Under the new Act, the vote of convening officer has ceased to exist and its functions are henceforth divided amongst three different bodies: the "higher authority" (a senior officer who decides whether cases should be dealt with summarily, referred for prosecution or dropped), the "prosecuting authority" and "court administration officers" (officers independent of both the higher authority and the prosecuting authority, responsible for organising the court-martial).

Each court-martial henceforth includes a judge-advocate as a member, whose advice on points of law are binding on the court and who has a vote on sentence, but not on conviction. The casting vote, if needed, rests with the president of the court-martial, who also gives reasons for the sentence in open court. The Judge Advocate General no longer provides general legal advice to the Secretary of State for Defence.

Findings of a court-martial are no longer subject to confirmation or revision by a confirming officer (whose role has been abolished). Each service establishes instead a reviewing authority which conducts a single review of each case and provides reasoned decisions. Post-trial advice received by the authority from a judge advocate (who must be different from the one who officiated at the court-martial) is disclosed if requested by the petitioner.

A right of appeal against sentence only to the (civilian) Courts-Martial Appeal Court has been added to the existing right of appeal against conviction.

The Government of the United Kingdom is of the opinion that the measures adopted will prevent new violations similar to the one found in this case and that therefore, the United Kingdom has complied with its obligations under Article 53 of the Convention.