In the case of Findlay v. the United Kingdom (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr J. De Meyer,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Sir John Freeland,
Mr D. Gotchev,
Mr P. Jambrek,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 September 1996 and
21 January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
- The case is numbered 110/1995/616/706. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
- Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
- The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 8 December 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 22107/93) against the United Kingdom of Great Britain and
Northern Ireland lodged with the Commission under Article 25 (art. 25)
by Mr Alexander Findlay, a British citizen, on 28 May 1993.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 6 para. 1 of the Convention
(art. 6-1).
- In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
- The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou,
Mr J.M. Morenilla, Mr D. Gotchev, Mr P. Jambrek and Mr K. Jungwiert
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
- As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
United Kingdom Government ("the Government"), the applicant's lawyer
and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
28 June 1996 and the Government's memorial on 4 July 1996.
On 29 August 1996 the President decided to admit to the
Court file an additional memorial submitted by the applicant which had
been received by the Registrar on 7 August 1996 (Rule 37 para. 1).
- In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 September 1996. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Ms S. Dickson, Foreign and Commonwealth Office, Agent,
Mr P. Havers QC,
Mr J. Eadie, Barrister-at-Law, Counsel,
Mr G. Rogers, Ministry of Defence,
Ms J. Murnane, Ministry of Defence,
Mr D. Woodhead, Ministry of Defence, Advisers;
(b) for the Commission
Mr N. Bratza, Delegate,
(c) for the applicant
Mr J. Mackenzie, Solicitor, Counsel,
Mr G. Blades, Solicitor,
Mr D. Sullivan, Solicitor, Advisers.
The Court heard addresses by Mr Bratza, Mr Mackenzie and
Mr Havers.
AS TO THE FACTS
I. Circumstances of the case
- The applicant, Alexander Findlay, is a British citizen who was
born in 1961 in Kilmarnock, Scotland, and now lives in Windsor,
England.
- In 1980 he joined the British army and became a member of the
Scots Guards. His service was due to terminate in October or
November 1992 when he would have received a resettlement grant and, at
the age of sixty, an army pension.
- In 1982 Mr Findlay took part in the Falklands campaign. During
the battle of Mount Tumbledown he witnessed the death and mutilation
of several of his friends and was himself injured in the wrist by a
mortar-shell blast. According to the medical evidence prepared for his
court martial (see paragraphs 11-13 below), as a result of these
experiences he suffered from post-traumatic stress disorder ("PTSD"),
which manifested itself by flashbacks, nightmares, feelings of anxiety,
insomnia and outbursts of anger. This disorder was not diagnosed until
after the events of 29 July 1990 (see paragraph 10 below).
- In 1987 he sustained an injury during training for service in
Northern Ireland when a rope which he was climbing broke and he fell
to the ground, severely damaging his back. This injury was extremely
painful and affected his ability to perform his duties, which, again
according to the medical evidence, led him to suffer from feelings of
stress, guilt and depression.
- In 1990 the applicant, who had become a lance-sergeant, was
sent with his regiment to Northern Ireland. On 29 July 1990, after a
heavy drinking session, he held members of his own unit at pistol point
and threatened to kill himself and some of his colleagues. He fired
two shots, which were not aimed at anyone and hit a television set, and
subsequently surrendered the pistol. He was then arrested.
1. The medical evidence
- On 31 July 1990 an ex-naval psychiatrist, Dr McKinnon, examined
Mr Findlay and found that he was responsible for his actions at the
time of the incident. However, a combination of stresses (including
his back injury and posting to Northern Ireland) together with his
heavy drinking on the day, had led to an "almost inevitable" event.
Dr McKinnon recommended "awarding the minimum appropriate punishment".
Following this report, the decision was taken to charge
Mr Findlay with a number of offences arising out of the incident on
29 July (see paragraph 14 below).
- In order to establish that he was fit to stand trial, at the
request of the army he was examined on two occasions by Dr Blunden, a
civilian consultant psychiatrist who had been employed by the
Ministry of Defence since 1980.
In her report of January 1991, Dr Blunden confirmed that
Mr Findlay was fit to plead and knew what he was doing at the time of
the incident. However, his chronic back problem (which caused him to
be frustrated and depressed at not being fit for duty in his
Northern Ireland posting) together with "his previous combat stresses
and a very high level of alcohol ... combined to produce this dangerous
behaviour".
In her second report, of March 1991, she explained that the
applicant had reacted to the stress caused by his back problems in the
way he did on 29 July 1990 because of his experiences in the
Falklands war. Whilst she did not clearly state that he suffered from
PTSD, she confirmed that similar patterns of behaviour frequently
occurred at a late stage in those who experienced this disorder. She
confirmed that the consumption of alcohol on the relevant day was a
result of his condition and not a cause of it.
- Mr Findlay was also examined by Dr Reid, at the request of his
(Mr Findlay's) solicitor. Dr Reid diagnosed him as suffering from PTSD
as a result of his service in the Falklands.
2. The composition of the court martial
- The position of "convening officer" (see paragraphs 36-41
below) for the applicant's court martial was assumed by the
General Officer Commanding London District, Major General Corbett. He
remanded Mr Findlay for trial on eight charges arising out of the
incident of 29 July 1990 and decided that he should be tried by
general court martial.
- By an order dated 31 October 1991, the convening officer
convened the general court martial and appointed the military personnel
who were to act as prosecuting officer, assistant prosecuting officer
and assistant defending officer (to represent Mr Findlay in addition
to his solicitor) and the members of the court martial
(see paragraph 37 below).
- The court martial consisted of a president and four other
members:
(1) the president, Colonel Godbold, was a member of
London District staff (under the command of the convening officer:
see paragraph 14 above). He was appointed by name by the latter and
was not a permanent president;
(2) Lieutenant-Colonel Swallow was a permanent president of
courts martial, sitting in the capacity of an ordinary member. He had
his office in the London District Headquarters. He was appointed by
name by the convening officer;
(3) Captain Tubbs was from the Coldstream Guards, a unit
stationed in London District. His reporting chain was to his
officer commanding, his commanding officer and the Brigade Commander,
after which his report could, in exceptional circumstances, go to the
convening officer; he was a member of a footguard unit and the
convening officer, as General Officer Commanding, was responsible for
all footguard units. He was appointed to the court martial by his
commanding officer;
(4) Major Bolitho was from the Grenadier Guards, also a
footguard unit stationed in London District. The convening officer was
his second superior reporting officer. He was appointed to the
court martial by his commanding officer;
(5) Captain O'Connor was from the Postal and
Courier Department, Royal Engineers (Women's Royal Army Corps), which
is under the direct command of the Ministry of Defence and is
administered by the London District. She was appointed by her
commanding officer.
In summary, all of the members of the court martial were
subordinate in rank to the convening officer and served in units
stationed within London District. None of them had legal training.
- The assistant prosecuting and defending officers were both
officers from the Second Scots Guards stationed in the London District
and had the same reporting chain as Captain Tubbs (see paragraph 16 (3)
above).
- The judge advocate for the general court martial was appointed
by the Judge Advocate General (see paragraphs 42-45 below). He was a
barrister and assistant judge advocate with the
Judge Advocate General's Office.
3. The court martial hearing
- On 11 November 1991, Mr Findlay appeared before the
general court martial, at Regent's Park Barracks in London. He was
represented by a solicitor.
He pleaded guilty to three charges of common assault (a
civilian offence), two charges of conduct to the prejudice of good
order and military discipline (a military offence) and two charges of
threatening to kill (a civilian offence).
- On 2 November 1991, his solicitor had made a written request
to the prosecuting authorities to ensure the appearance of Dr Blunden
at the court martial and on 5 November 1991 the prosecuting officer had
issued a witness summons requiring her attendance. However, the
defence was informed on the morning of the hearing that Dr Blunden
would not be attending. Mr Findlay claims that her absence persuaded
him to plead guilty to the above charges. However, his solicitor did
not request an adjournment or object to the hearing proceeding.
- The defence put before the court martial the medical reports
referred to above (paragraphs 11-13) and called Dr Reid to give
evidence. The latter confirmed his view that the applicant suffered
from PTSD, that this had been the principal cause of his behaviour,
that he had not been responsible for his actions and that he was in
need of counselling. During cross-examination, Dr Reid stated that
this was the first time he had dealt with battle-related PTSD.
The prosecution did not call any medical evidence in rebuttal
or adopt any of the evidence prepared by the army-instructed
psychiatrists, Drs McKinnon and Blunden (see paragraphs 11-13 above).
- In the course of his speech in mitigation, Mr Findlay's
solicitor urged the court martial that, in view of the fact that his
client had been suffering from PTSD at the time of the incident and was
extremely unlikely to reoffend, he should be allowed to complete the
few remaining months of his service and leave the army with his pension
intact and a minimal endorsement on his record.
- Having heard the evidence and speeches, the court martial
retired to consider their decision on sentence, accompanied by the
judge advocate. On their return they sentenced the applicant to two
years' imprisonment, reduction to the rank of guardsman and dismissal
from the army (which caused him to suffer a reduction in his
pension entitlement). No reasons were given for the sentence
(see paragraph 46 below).
4. The confirmation of sentence and review process
- Under the Army Act 1955, the decision of the court martial had
no effect until it was confirmed by the "confirming officer"
(see paragraph 48 below). In Mr Findlay's case, as was usual practice,
the confirming officer was the same person as the convening officer.
Mr Findlay petitioned him for a reduction in sentence.
Having received advice from the Judge Advocate General's
Office, the confirming officer informed the applicant on
16 December 1991 that the sentence had been upheld.
- The applicant, who had been under close arrest since the
morning before the court martial hearing, was removed on
18 November 1991 to a military prison and thereafter to a
civilian prison on 21 December 1991.
- He appealed by way of petition to the first of the "reviewing
authorities" (see paragraph 49 below), the Deputy Director General of
Personal Services, as delegate of the Army Board, a non-legally
qualified officer who obtained advice from the Judge Advocate General's
Office. By a letter dated 22 January 1992, Mr Findlay was informed
that this petition had been rejected.
- He then petitioned the second of the reviewing authorities, a
member of the Defence Council who also was not legally qualified and
who also received advice from the Judge Advocate General's Office.
This petition was rejected on 10 March 1992.
- The advice given by the Judge Advocate General's Office at each
of these three stages of review was not disclosed to the applicant, nor
was he given reasons for the decisions confirming his sentence and
rejecting his petitions.
- On 10 March 1992, the applicant applied to the Divisional Court
for leave to challenge by judicial review the validity of the findings
of the court martial. He claimed that the sentence imposed was
excessive, the proceedings were contrary to the rules of natural
justice and that the judge advocate had been hostile to him on
two occasions during the hearing.
On 14 December 1992 the Divisional Court refused leave on the
basis that the court martial had been conducted fully in accordance
with the Army Act 1955 and there was no evidence of improper conduct
or hostility on the part of the judge advocate
(R. v. General Court Martial (Regent's Park Barracks),
ex parte Alexander Findlay, CO/1092/92, unreported).
5. Civil proceedings
- Mr Findlay commenced a civil claim in negligence against the
military authorities, claiming damages in respect of his back injury
and PTSD. In a report dated 16 January 1994 prepared for these
purposes, Dr Blunden confirmed her previous opinion (see paragraph 12
above) and clearly diagnosed PTSD.
- In March 1994 the civil action was settled by the
Secretary of State for Defence, who paid the applicant £100,000 and
legal costs, without any admission of liability. The settlement did
not differentiate between the claims in respect of PTSD and the
back injury.
II. Relevant domestic law and practice
1. The law in force at the time of Mr Findlay's court martial
(a) General
- The law and procedures which applied to the applicant's court
martial were contained in the Army Act 1955 ("the 1955 Act"), the
Rules of Procedure (Army) 1972 ("the 1972 Rules") and the
Queen's Regulations (1975). Since the Commission's consideration of
the case, certain provisions in the 1955 Act have been amended by the
Armed Forces Act 1996 ("the 1996 Act"), which comes into force on
1 April 1997 (see paragraphs 52-57 below).
- Many civilian offences are also offences under the 1955 Act
(section 70 (1)). Although the final decision on jurisdiction lies
with the civilian authorities, army personnel who are accused of such
offences are usually tried by the military authorities unless, for
example, civilians are involved in some way.
Depending on their gravity, charges against army law can be
tried by district, field or general court martial. A court martial is
not a standing court: it comes into existence in order to try a single
offence or group of offences.
- At the time of the events in question, a general court martial
consisted of a president (normally a brigadier or colonel in the army),
appointed by name by the convening officer (see paragraphs 36-41
below), and at least four other army officers, either appointed by name
by the convening officer or, at the latter's request, by their
commanding officer.
- Each member of the court martial had to swear the following
oath:
"I swear by almighty God that I will well and truly try the
accused before the court according to the evidence, and that
I will duly administer justice according to the Army Act 1955,
without partiality, favour or affection, and I do further
swear that I will not on any account at any time whatsoever
disclose or discover the vote or opinion of the president or
any member of this court martial, unless thereunto required in
the due course of law."
(b) The convening officer
- Before the coming into force of the 1996 Act, a
convening officer (who had to be a field officer or of corresponding
or superior rank, in command of a body of the regular forces or of the
command within which the person to be tried was serving) assumed
responsibility for every case to be tried by court martial. He or she
would decide upon the nature and detail of the charges to be brought
and the type of court martial required, and was responsible for
convening the court martial.
- The convening officer would draw up a convening order, which
would specify, inter alia, the date, place and time of the trial, the
name of the president and the details of the other members, all of whom
he could appoint (see paragraph 15 above). He ensured that a
judge advocate (see paragraph 43 below) was appointed by the
Judge Advocate General's Office and, failing such appointment, could
appoint one. He also appointed, or directed a commanding officer to
appoint, the prosecuting officer.
- Prior to the hearing, the convening officer was responsible for
sending an abstract of the evidence to the prosecuting officer and to
the judge advocate, and could indicate the passages which might be
inadmissible. He procured the attendance at trial of all witnesses to
be called for the prosecution. When charges were withdrawn, the
convening officer's consent was normally obtained, although it was not
necessary in all cases, and a plea to a lesser charge could not be
accepted from the accused without it.
- He had also to ensure that the accused had a proper opportunity
to prepare his defence, legal representation if required and the
opportunity to contact the defence witnesses, and was responsible for
ordering the attendance at the hearing of all witnesses "reasonably
requested" by the defence.
- The convening officer could dissolve the court martial either
before or during the trial, when required in the interests of the
administration of justice (section 95 of the 1955 Act). In addition,
he could comment on the "proceedings of a court martial which require
confirmation". Those remarks would not form part of the record of the
proceedings and would normally be communicated in a separate minute to
the members of the court, although in an exceptional case "where a more
public instruction [was] required in the interests of discipline", they
could be made known in the orders of the command (Queen's Regulations,
paragraph 6.129).
- The convening officer usually acted as confirming officer also
(see paragraph 48 below).
(c) The Judge Advocate General and judge advocates
- The current Judge Advocate General was appointed by the Queen
in February 1991 for five years. He is answerable to the Queen and is
removable from office by her for inability or misbehaviour.
At the time of the events in question, the
Judge Advocate General had the role of adviser to the
Secretary of State for Defence on all matters touching and concerning
the office of Judge Advocate General, including advice on military law
and the procedures and conduct of the court-martial system. He was
also responsible for advising the confirming and reviewing authorities
following a court martial (see paragraph 49 below).
- Judge advocates are appointed to the Judge Advocate General's
Office by the Lord Chancellor. They must have at least seven and
five years experience respectively as an advocate or barrister.
- At the time of the events in question, a judge advocate was
appointed to each court martial, either by the Judge Advocate General's
Office or by the convening officer. He or she was responsible for
advising the court martial on all questions of law and procedure
arising during the hearing and the court had to accept this advice
unless there were weighty reasons for not doing so. In addition, in
conjunction with the president, he was under a duty to ensure that the
accused did not suffer any disadvantage during the hearing. For
example, if the latter pleaded guilty, the judge advocate had to ensure
that he or she fully understood the implications of the plea and
admitted all the elements of the charge. At the close of the hearing,
the judge advocate would sum up the relevant law and evidence.
- Prior to the coming into force of the 1996 Act, the
judge advocate did not take part in the court martial's deliberations
on conviction or acquittal, although he could advise it in private on
general principles in relation to sentencing. He was not a member of
the court martial and had no vote in the decision on conviction or
sentence.
(d) Procedure on a guilty plea
- At the time of the events in question, on a plea of guilty, the
prosecuting officer outlined the facts and put in evidence any
circumstance which might have made the accused more susceptible to the
commission of the offence. The defence made a plea in mitigation and
could call witnesses (rules 71 (3) (a) and 71 (5) (a) of the
1972 Rules). The members of the court martial then retired with the
judge advocate to consider the sentence, which was pronounced in open
court. There was no provision for the giving of reasons by the
court martial for its decision.
- Certain types of sentence were not available to courts martial
at the time of the applicant's trial, even in respect of
civilian offences. For example, a court martial could not suspend a
prison sentence, issue a probation order or sentence to
community service.
(e) Confirmation and post-hearing reviews
- Until the amendments introduced by the 1996 Act, a
court martial's findings were not effective until confirmed by a
"confirming officer". Prior to confirmation, the confirming officer
used to seek the advice of the Judge Advocate General's Office, where
a judge advocate different to the one who acted at the hearing would
be appointed. The confirming officer could withhold confirmation or
substitute, postpone or remit in whole or in part any sentence.
- Once the sentence had been confirmed, the defendant could
petition the "reviewing authorities". These were the Queen, the
Defence Council (who could delegate to the Army Board), or any officer
superior in command to the confirming officer (section 113 of the
1955 Act). The reviewing authorities could seek the advice of the
Judge Advocate General's Office. They had the power to quash a finding
and to exercise the same powers as the confirming officer in relation
to substituting, remitting or commuting the sentence.
- A petitioner was not informed of the identity of the confirming
officer or of the reviewing authorities. No statutory or formalised
procedures were laid down for the conduct of the post-hearing reviews
and no reasons were given for decisions delivered subsequent to them.
Neither the fact that advice had been received from the
Judge Advocate General's Office nor the nature of that advice was
disclosed.
- A courts martial appeal court (made up of civilian judges)
could hear appeals against conviction from a court martial, but there
was no provision for such an appeal against sentence when the accused
pleaded guilty.
2. The Armed Forces Act 1996
- Under the 1996 Act, the role of the convening officer will
cease to exist and his functions will be split among three different
bodies: the "higher authorities", the prosecuting authority and
court administration officers (see 1996 Act, Schedule I).
- The higher authority, who will be a senior officer, will decide
whether any case referred to him by the accused's commanding officer
should be dealt with summarily, referred to the new
prosecuting authority, or dropped. Once the higher authority has taken
this decision, he or she will have no further involvement in the case.
- The prosecuting authority will be the Services' legal branches.
Following the higher authority's decision to refer a case to them, the
prosecuting authority will have absolute discretion, applying similar
criteria as those applied in civilian cases by the
Crown Prosecution Service to decide whether or not to prosecute, what
type of court martial would be appropriate and precisely what charges
should be brought. They will then conduct the prosecution (1996 Act,
Schedule I, Part II).
- Court administration officers will be appointed in each Service
and will be independent of both the higher and the prosecuting
authorities. They will be responsible for making the arrangements for
courts martial, including arranging venue and timing, ensuring that a
judge advocate and any court officials required will be available,
securing the attendance of witnesses and selection of members.
Officers under the command of the higher authority will not be selected
as members of the court martial (1996 Act, Schedule I, Part III,
section 19).
- Each court martial will in future include a judge advocate as
a member. His advice on points of law will become rulings binding on
the court and he will have a vote on sentence (but not on conviction).
The casting vote, if needed, will rest with the president of the court
martial, who will also give reasons for the sentence in open court.
The Judge Advocate General will no longer provide general legal advice
to the Secretary of State for Defence (1996 Act, Schedule I, Part III,
sections 19, 25 and 27).
- Findings by a court martial will no longer be subject to
confirmation or revision by a confirming officer (whose role is to be
abolished). A reviewing authority will be established in each Service
to conduct a single review of each case. Reasons will be given for the
decision of the reviewing authority. As part of this process,
post-trial advice received by the reviewing authority from a
judge advocate (who will be different from the one who officiated at
the court-martial) will be disclosed to the accused. A right of appeal
against sentence to the (civilian) courts martial appeal court will be
added to the existing right of appeal against conviction (1996 Act,
section 17 and Schedule V).
PROCEEDINGS BEFORE THE COMMISSION
- In his application to the Commission (no. 22107/93) of
28 May 1993, Mr Findlay made a number of complaints under Article 6
para. 1 of the Convention (art. 6-1), inter alia that he had been
denied a fair hearing before the court martial and that it was not an
independent and impartial tribunal.
- The Commission declared the application admissible on
23 February 1995. In its report of 5 September 1995 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 of the Convention (art. 6-1), in that
the applicant was not given a fair hearing by an independent and
impartial tribunal, and that it was unnecessary to examine the further
specific complaints as to the fairness of the court-martial proceedings
and the subsequent reviews or the reasonableness of the decisions taken
against him and the available sentencing options. The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
- For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1997-I),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
- At the hearing, the Government said that it did not contest the
Commission's conclusions but asked the Court to take note of the
changes to the court-martial system to be effected by the
Armed Forces Act 1996 which, they submitted, more than satisfactorily
met the Commission's concerns.
On the same occasion, the applicant asked the Court to find a
violation of Article 6 para. 1 (art. 6-1) and to award him just
satisfaction under Article 50 of the Convention (art. 50).
AS TO THE LAW
I. SCOPE OF THE CASE
A. The complaints concerning Article 6 para. 1 of the Convention
(art. 6-1)
- In his written and oral pleadings before the Court, Mr Findlay
complained that the court martial was not an "independent and impartial
tribunal", that it did not give him a "public hearing" and that it was
not a tribunal "established by law".
- The Government and the Commission's Delegate both observed at
the hearing that since the latter two complaints had not been expressly
raised before the Commission, the Court should decline to entertain
them.
- The Court recalls that the scope of its jurisdiction is
determined by the Commission's decision on admissibility and that it
has no power to entertain new and separate complaints which were not
raised before the Commission (see, inter alia, the Singh
v. the United Kingdom judgment of 21 February 1996, Reports of
Judgments and Decisions 1996-I, p. 293, para. 44).
However, while Mr Findlay in his application to the Commission
may not expressly have invoked his rights under Article 6 para. 1 of
the Convention (art. 6-1) to a "public hearing" and a "tribunal
established by law", he does appear to have raised in substance most
of the matters which form the basis of his complaints in relation to
these two provisions. Thus, in the Commission's decision on
admissibility, he is reported as referring in particular to the facts
that the members of the court martial were appointed ad hoc, that the
judge advocate's advice on sentencing was not disclosed, that no
reasons were given for the decisions taken by the court-martial board
and the confirming and reviewing officers, and that the
post-hearing reviews were essentially administrative in nature and
conducted in private (see the Commission's decision on admissibility,
application no. 22107/93, pp. 32-35).
It follows that these are not new and separate complaints, and
that the Court has jurisdiction to consider these matters
(see, inter alia and mutatis mutandis, the James and Others
v. the United Kingdom judgment of 21 February 1986, Series A no. 98,
p. 46, para. 80).
B. The complaint concerning Article 25 of the Convention
(art. 25) and Article 2 of the European Agreement
- In his additional memorial (see paragraph 4 above) the
applicant asserted that, in correspondence with the Solicitors'
Complaints Bureau (a professional disciplinary body) concerning a
matter of no relevance to the present case, the Judge Advocate General
had complained that, during the course of Mr Findlay's application to
the Commission, his solicitor had made allegations concerning a lack
of impartiality in the advice given by the Judge Advocate General's
Office. The Judge Advocate General, Judge Rant, had commented: "These
are extremely serious allegations ...". In a later letter, Judge Rant
wrote:
"I wish to make it clear that, at this stage and without
prejudice to any action which might have to be taken in the
future, I am making no formal complaint about the passage
[from the applicant's submission to the Commission] quoted in
that letter. The reason for this is that the case of Findlay
is to be argued before the European Court of Human Rights in
September 1996 and therefore it is only proper for me to defer
action until the end of those proceedings."
The applicant alleged that his solicitor felt constrained in
presenting his arguments to the Court in the knowledge that they might
subsequently form the basis of disciplinary proceedings and he invoked
his rights under Article 25 of the Convention (art. 25) and Article 2
of the European Agreement relating to Persons Participating in
Proceedings before the European Commission and Court of Human Rights.
- Since this issue was not pursued by the applicant at the
hearing or referred to by the Government or the Delegate of the
Commission at any time, the Court does not find it appropriate to
examine it.
C. The new legislation
- In their written and oral pleadings, the Government asked the
Court to take note in its judgment of the changes to be effected in the
court-martial system by the Armed Forces Act 1996 (see paragraphs 52-57
above).
- The Court recalls that this new statute does not come into
force until April 1997, and thus did not apply at the time of
Mr Findlay's court martial. It is not the Court's task to rule on
legislation in abstracto and it cannot therefore express a view as to
the compatibility of the provisions of the new legislation with the
Convention (see, mutatis mutandis, the Silver and Others
v. the United Kingdom judgment of 25 March 1983, Series A no. 61,
p. 31, para. 79). Nonetheless, it notes with satisfaction that the
United Kingdom authorities have made changes to the
court-martial system with a view to ensuring the observance of their
Convention commitments.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
- The applicant claimed that his trial by court martial failed
to meet the requirements of Article 6 para. 1 of the Convention
(art. 6-1), which provides (so far as is relevant):
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law ..."
The Commission found that there had been a violation, in that
the applicant was not given a fair hearing by an independent and
impartial tribunal, and the Government did not contest this conclusion.
A. Applicability
- In the view of the Court, Article 6 para. 1 (art. 6-1) is
clearly applicable to the court-martial proceedings, since they
involved the determination of Mr Findlay's sentence following his plea
of guilty to criminal charges; indeed, this point was not disputed
before it (see the Engel and Others v. the Netherlands judgment of
18 June 1976, Series A no. 22, pp. 33-36, paras. 80-85, and the Eckle
v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35,
paras. 76-77).
B. Compliance
- The applicant complained that the court martial was not an
"independent and impartial tribunal" as required by Article 6 para. 1
(art. 6-1), because, inter alia, all the officers appointed to it were
directly subordinate to the convening officer who also performed the
role of prosecuting authority (see paragraphs 14-17 and 36-41 above).
The lack of legal qualification or experience in the officers making
the decisions either at the court martial or review stages made it
impossible for them to act in an independent or impartial manner.
In addition, he asserted that he was not afforded a
"public hearing" within the meaning of Article 6 para. 1 (art. 6-1),
in that the judge advocate's advice to the court-martial board, the
confirming officer and the reviewing authorities was confidential; no
reasons were given for the decisions made at any of these stages in the
proceedings; and the process of confirming and reviewing the verdict
and sentence by the confirming officer and reviewing authorities was
carried out administratively, in private, with no apparent rules of
procedure (see paragraphs 42-46 and 48-51 above).
Finally, he claimed that his court martial was not a tribunal
"established by law", because the statutory framework according to
which it proceeded was too vague and imprecise; for example, it was
silent on the question of how the convening officer, confirming officer
and reviewing authorities were to be appointed.
- The Government had no observations to make upon the
Commission's conclusion that there had been a violation of Article 6
para. 1 of the Convention (art. 6-1) by reason of the width of the role
of the convening officer and his command links with members of the
tribunal. They asked the Court to take note of the changes to the
court-martial system to be effected by the Armed Forces Act 1996 which,
in their submission, more than satisfactorily met the Commission's
concerns.
- The Commission found that although the convening officer played
a central role in the prosecution of the case, all of the members of
the court-martial board were subordinate in rank to him and under his
overall command. He also acted as confirming officer, and the
court martial's findings had no effect until confirmed by him. These
circumstances gave serious cause to doubt the independence of the
tribunal from the prosecuting authority. The judge advocate's
involvement was not sufficient to dispel this doubt, since he was not
a member of the court martial, did not take part in its deliberations
and gave his advice on sentencing in private.
In addition, it noted that Mr Findlay's court-martial board
contained no judicial members, no legally qualified members and no
civilians, that it was set up on an ad hoc basis and that the convening
officer had the power to dissolve it either before or during the trial.
The requirement to take an oath was not a sufficient guarantee of
independence.
Accordingly, it considered that the applicant's fears about the
independence of the court martial could be regarded as objectively
justified, particularly in view of the nature and extent of the
convening officer's roles, the composition of the court martial and its
ad hoc nature. This defect was not, moreover, remedied by any
subsequent review by a judicial body affording all the guarantees
required by Article 6 para. 1 (art. 6-1), since the confirming officer
was the same person as the convening officer, and the reviewing
authorities were army officers, the second of whom was superior in rank
to the first. The ineffectiveness of the post-hearing reviews was
further underlined by the secrecy surrounding them and the lack of
opportunity for Mr Findlay to participate in a meaningful way.
- The Court recalls that in order to establish whether a tribunal
can be considered as "independent", regard must be had, inter alia, to
the manner of appointment of its members and their term of office, the
existence of guarantees against outside pressures and the question
whether the body presents an appearance of independence (see the Bryan
v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A,
p. 15, para. 37).
As to the question of "impartiality", there are two aspects to
this requirement. First, the tribunal must be subjectively free of
personal prejudice or bias. Secondly, it must also be impartial from
an objective viewpoint, that is, it must offer sufficient guarantees
to exclude any legitimate doubt in this respect (see the Pullar
v. the United Kingdom judgment of 10 June 1996, Reports 1996-III,
p. 792, para. 30).
The concepts of independence and objective impartiality are
closely linked and the Court will consider them together as they relate
to the present case.
- The Court observes that the convening officer, as was his
responsibility under the rules applicable at the time, played a
significant role before the hearing of Mr Findlay's case. He decided
which charges should be brought and which type of court martial was
most appropriate. He convened the court martial and appointed its
members and the prosecuting and defending officers
(see paragraphs 14-15 and 36-37 above).
Under the rules then in force, he had the task of sending an
abstract of the evidence to the prosecuting officer and the
judge advocate and could indicate passages which might be inadmissible.
He procured the attendance at trial of the witnesses for the
prosecution and those "reasonably requested" by the defence. His
agreement was necessary before the prosecuting officer could accept a
plea to a lesser charge from an accused and was usually sought before
charges were withdrawn (see paragraphs 38 and 39 above).
For these reasons the Court, like the Commission, considers
that the convening officer was central to Mr Findlay's prosecution and
closely linked to the prosecuting authorities.
- The question therefore arises whether the members of the
court martial were sufficiently independent of the convening officer
and whether the organisation of the trial offered adequate guarantees
of impartiality.
In this respect also the Court shares the concerns of the
Commission. It is noteworthy that all the members of the
court martial, appointed by the convening officer, were subordinate in
rank to him. Many of them, including the president, were directly or
ultimately under his command (see paragraph 16 above). Furthermore,
the convening officer had the power, albeit in prescribed
circumstances, to dissolve the court martial either before or during
the trial (see paragraph 40 above).
- In order to maintain confidence in the independence and
impartiality of the court, appearances may be of importance. Since all
the members of the court martial which decided Mr Findlay's case were
subordinate in rank to the convening officer and fell within his chain
of command, Mr Findlay's doubts about the tribunal's independence and
impartiality could be objectively justified (see, mutatis mutandis, the
Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20,
para. 42).
- In addition, the Court finds it significant that the convening
officer also acted as "confirming officer". Thus, the decision of the
court martial was not effective until ratified by him, and he had the
power to vary the sentence imposed as he saw fit (see paragraph 48
above). This is contrary to the well-established principle that the
power to give a binding decision which may not be altered by a
non-judicial authority is inherent in the very notion of "tribunal" and
can also be seen as a component of the "independence" required by
Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Van de Hurk
v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16,
para. 45).
- The Court further agrees with the Commission that these
fundamental flaws in the court-martial system were not remedied by the
presence of safeguards, such as the involvement of the judge advocate,
who was not himself a member of the tribunal and whose advice to it was
not made public (see paragraphs 45-46 above), or the oath taken by the
members of the court-martial board (see paragraph 35 above).
- Nor could the defects referred to above (in paragraphs 75
and 77) be corrected by any subsequent review proceedings. Since the
applicant's hearing was concerned with serious charges classified as
"criminal" under both domestic and Convention law, he was entitled to
a first-instance tribunal which fully met the requirements of Article 6
para. 1 (art. 6-1) (see the De Cubber v. Belgium judgment of
26 October 1984, Series A no. 86, pp. 16-18, paras. 31-32).
- For all these reasons, and in particular the central role
played by the convening officer in the organisation of the
court martial, the Court considers that Mr Findlay's misgivings about
the independence and impartiality of the tribunal which dealt with his
case were objectively justified.
In view of the above, it is not necessary for it to consider
the applicant's other complaints under Article 6 para. 1 (art. 6-1),
namely that he was not afforded a "public hearing" by a tribunal
"established by law".
In conclusion, there has been a violation of Article 6
para. 1 of the Convention (art. 6-1).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
- The applicant claimed just satisfaction pursuant to Article 50
of the Convention (art. 50), which states:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Pecuniary damage
- The applicant claimed compensation for loss of income totalling
440,200 pounds sterling (GBP), on the basis that, had he not been
convicted and sentenced as he was, he would have completed a
twenty-two year engagement in the army, eventually attaining the rank
of Colour Sergeant, with entitlement to a pension from the age of
forty.
- The Government submitted that a finding of a violation would
constitute sufficient satisfaction, or, in the alternative, that only
a very modest amount should be awarded. First, there were no grounds
for believing that the applicant would not have been convicted,
sentenced to a term of imprisonment and dismissed from the army
following his trial (at which he pleaded guilty), even if the
court martial had been differently organised. Secondly, it was in any
case unlikely that he would have enjoyed a long career in the army, in
view of the post traumatic stress disorder and back injury from which
he suffered (see paragraphs 8, 9 and 30 above); he had already received
GBP 100,000 in settlement of his civil claim against the
Ministry of Defence, a large part of which related to loss of
earning capacity.
- At the hearing, the Commission's Delegate observed that no
causal link had been established between the breach of the Convention
complained of by the applicant and the alleged pecuniary damage, and
submitted that it was not possible to speculate as to whether the
proceedings would have led to a different outcome had they fulfilled
the requirements of Article 6 para. 1 (art. 6-1).
85. The Court agrees; it cannot speculate as to what the outcome
of the court-martial proceedings might have been had the violation of
the Convention not occurred (see, for example, the Schmautzer
v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 16,
para. 44). It is therefore inappropriate to award Mr Findlay
compensation for pecuniary damage.
B. Non-pecuniary damage
- The applicant claimed compensation of GBP 50,000 for the
distress and suffering caused by the court-martial proceedings and for
the eight months he spent in prison. He also asked that his conviction
be quashed.
- The Government pointed out that it was beyond the power of the
Court to quash the applicant's conviction.
- The Court reiterates that it is impossible to speculate as to
what might have occurred had there been no breach of the Convention.
Furthermore, it has no jurisdiction to quash convictions pronounced by
national courts (see the above-mentioned Schmautzer judgment,
loc. cit.).
In conclusion, the Court considers that a finding of violation
in itself affords the applicant sufficient reparation for the alleged
non-pecuniary damage.
C. Costs and expenses
- The applicant claimed GBP 23,956.25 legal costs and expenses,
which included GBP 1,000 solicitor's costs and GBP 250 counsel's fees
for the application before the Divisional Court.
- The Government expressed the view that the costs of the
application to the Divisional Court should be disallowed, and submitted
that a total of GBP 22,500 would be a reasonable sum.
- The Court considers that, in the circumstances of the
present case, it was reasonable to make the application to the
Divisional Court, in an attempt to seek redress for the violation of
which Mr Findlay complains. It therefore decides to award in full the
costs and expenses claimed, less the amounts received in legal aid from
the Council of Europe which have not already been taken into account
in the claim.
D. Default interest
- According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date
of adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1);
- Dismisses the claim for pecuniary damage;
- Holds that the finding of a violation in itself constitutes
sufficient just satisfaction for any non-pecuniary damage
alleged by the applicant;
- Holds
(a) that the respondent State is to pay to the applicant,
within three months, in respect of costs and expenses,
GBP 23,956.25 (twenty-three thousand, nine hundred and
fifty-six pounds sterling and twenty-five pence) less
26,891 (twenty-six thousand, eight hundred and ninety-one)
French francs, to be converted into pounds sterling at the
rate applicable on the date of delivery of the present
judgment;
(b) that simple interest at an annual rate of 8% shall be
payable from the expiry of the above-mentioned
three months until settlement.
Done in English and in French and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 25 February 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the concurring
opinion of Mr De Meyer is annexed to this judgment.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE DE MEYER
To this judgment, the result of which I fully approve, I would
add a brief remark.
Once again reference is made in its reasoning to "appearances"
(paragraphs 73 and 76).
First of all, I would observe that the Court did not need to
rely on "appearances", since there were enough convincing elements to
enable it to conclude that the court-martial system, under which
Lance-Sergeant Findlay was convicted and sentenced in the present case,
was not acceptable.
Moreover, I would like to stress that, as a matter of
principle, we should never decide anything on the basis of
"appearances", and that we should, in particular, not allow ourselves
to be impressed by them in determining whether or not a court is
independent and impartial. We have been wrong to do so in the past,
and we should not do so in the future.
