CONCURRING OPINION OF JUDGE COSTA

(Translation)

Not without hesitation, I have fallen in with the majority opinion of my colleagues, which has thus in the end become unanimous.

I wish to give the following brief explanation of my reasoning.

In Morris v. the United Kingdom (no. 38784/97, ECHR 2002-I) , which also concerned the procedure before a court - martial, albeit in the army, not, as here, in the air force, a Chamber of the Court, of which I was a member, unanimously found a violation of Article 6 § 1 of the Convention as regards the applicant ' s complaints relating to the general structure of the system. In the present case, on the contrary, the Court has held that there was no violation of Article 6.

The reasoning in Morris was based on the following considerations.

(a) There were not sufficient safeguards against the risk of outside pressures on the two members who, with the permanent president, made up the court-martial . The two officers concerned – both captains – had not received any legal training, remained subject to military discipline and assessment reports and were not insulated from army influence by any legal provision.

(b) The “ reviewing authority ”, a non-judicial body, automatically reviewed conviction and sentence and was empowered to quash them. Above all, it could reach any finding of guilt which could have been reached by the court-martial and substitute any sentence which would have been open to the court-martial , provided it was not more serious, although the assessment of what would constitute a more serious sentence was left to the discretion of the reviewing authority itself.

In reaching the opposite conclusion in Cooper , the Grand Chamber took other factors into consideration.

(a) As regards the two “ordinary” members of the court-martial – a flight lieutenant and a squadron leader – the Grand Chamber took the view that their lack of legal training was made up for by the directions given by the judge advocate (one of the most significant safeguards) and by the b riefing n otes drawn up by the RAF ' s Courts-Martial Adm i n i stration Unit (an argument raised by the Government in the present case), which the Court considered to be an additional safeguard of which the Chamber was not aware when its judgment in Morris was delivered. The Grand Chamber also took into account another piece of additional information now supplied by the Government, namely that the members of a court-martial cannot be reported on in relation to their judicial decision-making.

(b) As regards the role of the reviewing authority , while taking the view that it constituted an anomalous feature of the present system, and expressing its concern about the possibility of a court ' s findings being varied by a non-judicial body, the Grand Chamber emphasised the role of the Courts-Martial Appeal Court, which was responsible for the final review of any new verdict or sentence and which was indeed a judicial body that afforded all the guarantees required by Article 6.

The above summary shows that there are certainly differences between Morris and Cooper . Some of these are to be found in the particular circumstances of each case; the others are explained by the fact that the respondent Government ' s submissions were more fully developed and more precise in the second case. Are these differences sufficient to justify reaching two opposite conclusions , separated by an interval of less than two years?

Ultimately, I think that they are. I still think that the intervention of the reviewing authority is anomalous, unfortunate and archaic, and that it would be desirable to put an end to the practice. But I would point out – and for me this is an important aspect in Cooper – that the reviewing authority ' s intervention did not in any way alter the verdict and sentence pronounced by the court-martial which tried Mr Cooper (see paragraph 13 of the judgment); ruling in this particular case, it would have been difficult for the Grand Chamber to uphold a complaint about a matter which had no bearing whatsoever on the outcome for the applicant. As regards the other complaint, the one concerning the “ordinary members” of the court-martial , without sharing completely my colleagues ' conviction on this point (see paragraph 124), I accept that the b riefing n otes drawn up for the information of these officers were indeed capable of strengthening that independence to some extent.

In the final analysis, the whole system is rather complex, as shown a fortiori by a comparison with Grieves , concerning naval courts - martial. But the essential role of our Court in relation to fair trial is not to push member States towards simplification but to ensure that they comply with the guarantees of Article 6 § 1. As the file submitted to the Court in Morris stood, I considered that the respondent State had not done so, but on the basis of the file placed before the Court in Cooper , I can now find that it did.