(Application no. 40426/98)
24 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Martin v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L.Early, Section Registrar,
Having deliberated in private on 3 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“... We have some considerable sympathy with the appellant’s complaint. With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases. There was not, as is accepted, any attempt to over reach or oppress or prejudice the appellant. He had all the safeguards which a defendant in any court-martial is entitled to enjoy. Steps were taken to ensure that all members of the tribunal save one were not under the command of the convening officer, and also to ensure that the convening officer and the confirming officer were not the same person. Had the appellant been held in Germany to await trial, as he could have been, his claim to trial in England would have appeared weaker. Whether or not it proved necessary in the event to adduce the oral evidence of German factual witnesses, the greater availability of such witnesses as a trial in Germany was a legitimate reason for favouring trial there.
We are satisfied that these proceedings were not an abuse of process.”
“It is not difficult to understand the utility of [section 209 of the Army Act 1955: see paragraph 24 below], in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces when serving overseas. Had the law not been changed in this respect, civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and, if sentenced to imprisonment, to serve the sentence in a local prison. ...
Fundamental to the appellant’s argument in the present case is the proposition that the purpose of [the extension of jurisdiction in section 9 of the 1861 Act: see paragraph 29 below] was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt declared by means of a jury trial. ... It seems to me that another, and more likely, explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a British citizen. ...
In view of what I have said above I do not believe that the proceedings by way of court-martial in this case can be said in themselves to have been an abuse of process. ... The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe. ...”
“The timing of any consideration of the matter by the Director of Public Prosecutions would, in my view, have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe. It cannot be assumed that the Director would have been willing to take proceedings in England without knowing more about the factors which he would have wished to take into account. One obvious factor, I would have thought, was the availability of witnesses. In his letter of 14 June 1994 to the Attorney General the Director of Army Legal Services had stated that many of the witnesses were German and that they could not be forced to attend a trial in England. Further details were provided at the request of the Attorney General in a letter by the Director of Army Legal Services dated 25 November 1994. In this letter it is stated that there were 13 German witnesses who could be divided into three categories—those who saw the appellant in the woods near the scene of the murder, those concerned with the finding of the body and police and forensic experts. The defence had not yet indicated what evidence would be agreed. The Director thought that, while some of their evidence might be agreed, it was unlikely that this would include the police and forensic experts. He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to England to give evidence. He added that one of the forensic scientists who was responsible for examining secretions and bloodstains—a matter which was of crucial importance in this case as there were no eyewitnesses—was being difficult to deal with and would only attend meetings if they were arranged through the German public prosecutor in the nearest large town. He explained that these witnesses were German because the police investigation was commenced by the German civil police as it was initially assumed that a German civilian had committed the crime. ...
I have not forgotten that Lord Bingham of Cornhill CJ [see paragraph 18 above] said in his judgment that it was clear, with the benefit of hindsight, that the trial could have been conducted in England without due difficulty. But the Director of Public Prosecutions would have had to have taken his decision well before the trial, in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in England and for the attendance of the witnesses. In the event, as the respondent has recorded in his written case, no agreement was reached, despite several written requests and reminders, about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during the opening days. This account of what happened strongly suggests that at the stage when the Director of Public Prosecutions would have had to have taken his decision he would have had to assume that the important evidence of the German witnesses would not be agreed before the trial and that the attendance of the German witnesses would be necessary. ...
... The proceedings were conducted within the rules laid down by Parliament. There is no sound basis for thinking that, at the time when a decision about this would have had to have been taken, a prosecution in the English courts within a reasonable time would have been seen to be practicable. The alternatives lay between taking proceedings by way of court-martial in Germany, leaving the matter in the hands of the German public prosecutor or taking no proceedings at all. ...”
II. RELEVANT NON-CONVENTION LAW AND PRACTICE
A. The NATO Status of Forces Agreement 1951
“1. Subject to the provisions of this Article,
the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State;
the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.
“3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or a civilian component in relation to
(i) offences solely against property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that state or of a dependent;
(ii) offences arising out of an act or omission done in the performance of official duty.”
B. The Army Act 1955
“(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. ...
A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding civil offence is ... murder.”
“Subject to the modifications hereinafter specified, Part II of this Act shall at all times apply to a person of any description specified in the Fifth Schedule to this Act who is within the limits of the command of any officer commanding a body of the regular forces outside the United Kingdom, and is not subject to military law ... apart from this section ... as the said Part II applies to persons subject to military law ...”
“Persons forming part of the family of members of any of Her Majesty’s Naval, Military, or Air Forces and residing with them or about to reside or departing after residing with them.”
“Subject to the provisions of the next following section, where an offence under this Act triable by Court-Martial has been committed ... by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of the Act relating to ... trial and punishment by Court-Martial ... as continuing subject to military law and notwithstanding his ceasing at any time to be subject thereto.”
C. The Offences against the Person Act 1861
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
B. The Merits
1. The Government’s submissions
2. The applicant’s submissions
3. The Court’s assessment
46. In Findlay, the Court held that Mr Findlay’s fears about the independence and impartiality of a court-martial established under the provisions of the Army Act 1955 were objectively justified. The Court considered that the members of the court-martial were not sufficiently independent of the Convening Officer, who was central to the prosecution and closely linked to the prosecuting authorities. In particular, the Court referred to the Convening Officer’s powers to decide the charge, convene the court-martial and appoint the members and the prosecuting and defending officers as well as to provide abstracts of evidence, procure the attendance of witnesses and dissolve the court-martial before or during the trial when required in the interests of the administration of justice (see Findlay, § 74). The Court held that these fundamental flaws were not remedied by the presence of safeguards, such as the involvement of the Judge Advocate, who was not himself a member of the court-martial and whose advice to it was not made public.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Cost and Expenses
C. Default Interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 6 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,370 (eight thousand three hundred and seventy euros) in respect of costs and expenses, to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 24 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early J. Casadevall