DISSENTING OPINION OF JUDGE MARUSTE

The majority relies very much on the application of the Engel criteria ( Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22) in the judgment in Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003 ‑ X). I can agree partly since there are some similarities, but there are also circumstances which would distinguish this case from Ezeh and Connors .

The present case is about a fresh conviction not related to serving a lawful and current prison sentence. The similarity comes from the “what was originally at stake” problem. It is suggested that, if the case was tried by a district court-martial, the applicant could have “in theory” faced a sentence of up to two years ’ imprisonment and, in paragraph 47 of the attached judgment, the majority endorsed this position. However, it must be noted that the expression “in theory” is speculative and, further, it is clear from the circumstances and nature of the present case that that was very unlikely to happen and no case law was produced to substantiate such a scenario.

It should also be noted that the applicant could have opted, but refused to so opt, for trial by court-martial. In outlining its reasoning on the waiver point, the majority of the Chamber relied upon the Thomson case ( Thompson v. the United Kingdom , no. 36256/97, 15 June 2004) but not specifically applying it to the circumstances of the present case. No evidence was produced that the applicant had not understood the differences between two procedures, even with the assistance of the Accused ’ s Adviser and the post-October 1997 Pamphlet. It was just presumed by analogy. This is not convincing for me and I consider the waiver to be valid in the circumstances.

Finally, I consider some discretionary, speedy and summary disciplinary measures as a necessary and natural part of military service, without which the army would lose part of its effectiveness and operationality . It would be my understanding that these considerations were behind the Eggs decision ( Eggs v. Switzerland No. 7341/76, Commission decision of 4 March 1978, Decisions and Reports 15, p. 35, § 79) where the Commission found that, although relatively harsh, that penalty restricting freedom could not, either by its duration or by the conditions of its enforcement in Basle prison, have caused serious detriment to the applicant. That procedure could not, therefore, be classified as criminal.

For more elaborated (dissenting) views about the above-cited Ezeh and Connors judgment which I still maintain, I would refer the reader to the joint dissenting opinion in that case.