Findlay v. The United Kingdom (110/1995/616/706) 25 February 1997: independence and impartiality of court-martial; Convening officer central to prosecution and closely linked to prosecuting authorities

SUMMARY

United Kingdom - independence and impartiality of court-martial (Army Act 1955)

II. Article 6 1 of the Convention

A. Applicability

Article 6 1 clearly applicable since proceedings involved determination of sentence following guilty plea.

B. Compliance

Convening officer central to prosecution and closely linked to prosecuting authorities - inter alia he decided which charges should be brought, convened court-martial, appointed members and prosecuting and defending officers.

Members of court-martial were all military personnel subordinate in rank to convening officer who, as confirming officer, could vary sentence imposed.

Defects could not be corrected by subsequent review proceedings since applicant entitled to first instance tribunal meeting requirements of Article 6 1.

Conclusion: violation (unanimous)

II. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION

68. The applicant claimed that his trial by court-martial failed to meet the requirements of Article 6 1 of the Convention, 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
69. In the view of the Court, Article 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 v. the Netherlands judgment of 18 June 1976, Series A no. 22, pp. 33-36, 80-85, and the Eckle and Others v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35, 76-77).

B. Compliance
70. The applicant complained that the court-martial was not an "independent and impartial tribunal" as required by Article 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 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.

71. The Government had no observations to make upon the Commission's conclusion that there had been a violation of Article 6 1 of the Convention 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.

72. 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 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.

73. 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, 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 of Judgments and Decisions-1996, p. ..., 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.

74. 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.

75. 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).

76. 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, 42).

77. 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 1 (see, mutatis mutandis, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, 45).

78. 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).

79. 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 1 (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, pp. 16-18, 31-32).

80. 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 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 1 of the Convention.

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