CASE OF BELL v. THE UNITED KINGDOM

FOURTH SECTION

CASE OF BELL v. THE UNITED KINGDOM

(Application no. 41534/98)

JUDGMENT

STRASBOURG 

16 January 2007

FINAL

16/04/2007

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 Bell v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

MrJ. Casadevall, President,
SirNicolas Bratza,
MrM. Pellonpää,
MrR. Maruste,
MrK. Traja,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 12 December 2006,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 41534/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Brian Bell (“the applicant”), on 22 May 1998.

2. The applicant was represented by Mr J. Mackenzie, a lawyer practising in Oxfordshire. The United Kingdom Government (“the Government”) were represented by their Agents, Mr C.A. Whomersley and, subsequently, Mr J. Grainger, both of the Foreign and Commonwealth Office.

3. The case concerned proceedings before his Commanding Officer (“CO”). He complained under Article 6 §§ 1 and 3 that his CO lacked independence and impartiality, that those proceedings were consequently unfair, that the trial was not “public”, that his CO did not constitute a tribunal “established by law” and that he had no legal representation.

4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5. By a decision of 15 November 2005, a Chamber of the Fourth Section of the Court declared the application partly admissible.

6. The Government, but not the applicant, filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1973 and lived in Surrey.

8. At the time of the events in question, he was a soldier serving as a Private with the Grenadier Guards of the British Army, stationed at Alexandra Barracks in Northern Ireland.

9. On the evening of 19 December 1997 the applicant was talking with an officer, Captain J, in the foyer of the cookhouse at the barracks. There followed an exchange of words between the applicant and a non-commissioned officer, Sergeant H, who subsequently ordered another non-commissioned officer, Corporal G, to have the applicant locked up overnight. The applicant was not told the offence of which he was accused, but on his arrival at the guardroom he overheard Sergeant H tell the Guard Commander that he had seen the applicant with a bleeding nose and that, when he asked the applicant about it, the latter had told him to “fuck off”.

10. The applicant was released the following morning and went to the medical centre. He submitted that his examination established that he had not had a nose bleed the night before.

11. On 22 December 1997 at approximately 2 p.m. the applicant was informed that he would have to appear before his company commander. At approximately 4 p.m. he appeared before his company commander, who, in connection with the events of 19 December, charged the applicant with the offence of using insubordinate language to a superior contrary to section 33(1)(b) of the Army Act 1955 and informed the applicant that the case would be heard the following day by the battalion commanding officer (“CO”). He informed the applicant of the facts alleged against him.

12. The applicant claimed that he then went to the medical centre and asked for a record of his examination establishing that he had not had a nose bleed on the night in question. He claimed that staff at the medical centre refused to provide the record and the Government disputed this.

13. The applicant accepted that he received a version of the information pamphlet entitled “Rights of a Soldier charged with an offence under the Army Act 1955”, although he claimed that it was the pre-October 1997 version and thus out of date.

14. On the morning of 23 December 1997 the applicant was asked if he had any witnesses to call at the hearing before the CO. He asked that Captain J and Corporal G be called to give evidence on his behalf. When the applicant arrived at the Regimental Offices later that morning he saw Corporal G being called into the Regimental Sergeant Major’s office. The applicant claimed that Corporal G had been directed not to give evidence in support of his case. The Government argued that it was routine for witnesses to be called into the Regimental Sergeant Major’s office so that the procedure to be followed at the hearing could be explained and they denied that Corporal G had been directed as the applicant alleged or at all.

15. The applicant appeared before the CO at 10.30 a.m. on 23 December 1997. The hearing lasted approximately ten minutes. Present in the CO’s office for the hearing were the CO, the battalion adjutant, the regimental sergeant major, Sergeant H and the “accused adviser”, an officer appointed to look after the applicant’s interests, whose identity remained unknown to the applicant and with whom he had not discussed his case. That officer did not speak at any point during the hearing. The applicant was required to stand to attention throughout the hearing and was permitted to speak only when invited to do so by the CO.

16. The CO asked Sergeant H to give his evidence. The latter said that he had seen the applicant in the foyer of the cookhouse on the relevant evening and that his nose had been bleeding. When he had asked the applicant about his nose bleed, he had replied: “Fuck off, it’s nothing to do with you”.

17. The CO then asked the applicant if he admitted the offence described and the applicant pleaded not guilty. The CO asked him to give his evidence and he said that he had been speaking to Captain J when Sergeant H had ordered him to go to bed. The applicant had said to Sergeant H that he was speaking to Captain J, but Sergeant H had then ordered Corporal G to lock him up. The CO asked the applicant if he had any evidence to call and the applicant asked to call Captain J. The latter said that he had been speaking to the applicant in the foyer of the cookhouse and had not heard him swear at Sergeant H. The applicant claimed that, at this point, Sergeant H interrupted Captain J’s evidence saying that he did not think the Captain could have heard anything as the exchange in question had taken place outside the cookhouse. The Government denied any such interruption. The applicant further alleged that Captain J responded to Sergeant H: “In which case I would not have heard it”. Corporal G did not give evidence.

18. The CO asked the applicant if he wished to elect trial by court-martial, but the applicant said that he would accept the CO’s award. The company commander, who was present by this time, said that the applicant was a satisfactory member of his company. The CO then said that he found the applicant guilty and sentenced him to seven days’ detention and seven days’ associated loss of pay. The applicant served his sentence in a locked cell in the battalion guardroom.

II. RELEVANT DOMESTIC LAW AND PRACTICE

19. The Armed Forces Act 1996 (“the 1996 Act”) came into force on 1 April 1997 and amended the disciplinary and court-martial procedures regulated by the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955. References below to “the 1955 Act” are to the Army Act 1955 as amended. The statutory disciplinary provisions applicable to armed forces personnel are contained in the above-listed three “service discipline Acts”. Each Act specifies, in virtually identical terms, the offences for which persons subject to that Act can be tried and the punishments applicable. Persons subject to armed forces law are thereby subjected to a common code of offences and punishments.

A. The Offence

20. The offences triable under the 1955 Act include misconduct in action; offences by or in relation to sentries, person on watch etc; failure to attend for, neglect of, duty; looting; mutiny and related offences; insubordinate behaviour; disobedience of a lawful command or standing order; desertion, absence without leave and related offences; malingering, drunkenness, disorderly conduct and fighting; refusal to submit to drug testing; false statements on entry or enlistment; offences harmful to morale; scandalous or disgraceful behaviour; ill-treatment of persons of inferior rank and conduct or neglect to the prejudice of good order and military discipline (see sections 24-68 of the 1955 Act).

21. In addition to the above, any person subject to armed forces law who commits a civilian offence (any act punishable by the laws of England) is also guilty of an offence against the service discipline Acts (section 70 of the 1955 Act).

22. Section 33(1)(b) of the Army Act 1955 (“the 1955 Act”) provides:

“Any person subject to military law who - ...

(b) uses threatening or insubordinate language to his superior officer

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided by this Act.”

B. Summary trial: investigations

23. Section 76 of the 1955 Act provides that an allegation that an accused has committed an offence, including the offence cited above, shall be reported to his commanding officer (“CO”). Regulation 25 of the Investigation and Summary Dealing (Army) Regulations 1997 (“the 1997 Regulations” - enacted under section 83 of the 1955 Act) provides that COs shall investigate the charge by, inter alia, causing such enquiries to be made as appear necessary. Following investigation, the CO may dismiss the charge, refer the charge to a higher authority or deal with it summarily.

C. Summary trial: hearings

24. Regulation 9 of the 1997 Regulations notes that COs may deal summarily with any charge under section 33 of the 1955 Act. Before dealing summarily with a charge, a CO shall, inter alia, call witnesses whose evidence he considers may be relevant to the charge, allow the accused to question those witnesses, allow the accused to give evidence on his own behalf and allow the accused to call his own witnesses (Regulation 29 of the 1997 Regulations). The CO had to either hear evidence orally himself or cause it to be reduced to writing. The latter was obligatory if it was considered that extended detention could be awarded on any finding of guilt (see “Penalties” at paragraph 28 below).

25. If, having heard the evidence, the CO finds that the charge has been proved, the CO shall, before so recording, afford the accused the opportunity of electing trial by court-martial (Section 76B of the 1955 Act). If the accused does not so elect, the CO can, inter alia, record a finding of guilty and award penalties.

26. While an accused cannot be legally represented at the CO hearing, Chapter 62 of the Army General Administrative Instructions (“AGAIs”) describes the Accused’s Adviser procedure. The Adviser acts in the accused’s best interests but is not to be considered a form of defence lawyer and is not legally qualified. An Adviser’s function is limited to advising the accused before and at the hearing (for example, as regards whether to elect trial by court-martial) and making a statement during the trial about the accused’s background and in mitigation. Detailed guidance for the Accused’ Adviser is set out at Annex M to Chapter 62, including on the procedure for electing trial by court-martial and the advice to be given to an accused in that respect.

D. Penalties

27. The maximum duration of the imprisonment for the offence of using insubordinate language is not defined under the 1955 Act.

28. By virtue of Regulation 12 of the 1997 Regulations, a CO dealing summarily with an offence can make an award of detention not exceeding 28 days unless he complies with Regulation 31 of the 1997 Regulations. That Regulation provides that a CO may award extended detention (up to 60 days) if he has taken written statements from all the witnesses (Regulation 31(3)), satisfied himself that the accused was not likely to dispute the charge (Regulation 31(4)), obtained permission from a higher authority to award extended detention (Regulation 31(5) and (7)) and informed the accused of his extended powers (Regulation 31(9)).

29. A district court-martial can award imprisonment of up to two years (section 85(2) of the 1955 Act). There is no upward limit on the awards of imprisonment of a general court-martial.

E. The Pamphlet

30. All soldiers are provided with a pamphlet entitled “The Rights of a Soldier Charged with an Offence under the Army Act 1955”. The pamphlet was amended on 1 October 1997 following the entry into force of the 1996 Act.

31. The post-October 1997 version of the pamphlet submitted by the Government in the present case informs soldiers of their right to have an Accused’s Adviser both before and during the hearing, of the role of the Adviser (see paragraph 26 above), the procedure at the hearing, the penalties available, the procedure for applying for extended detention powers, the means of electing for trial by court-martial (including when and how much time is accorded to decide), the time available to withdraw any such election and the consequences of such an election (including the possibility of being prosecuted on more serious charges).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

32. The applicant made various complaints under Article 6 §§ 1 and 3 of the Convention, which provisions, in so far as relevant, read as follows:

“1. 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 ....

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

...”

A. Applicability of Article 6

33. The applicant contended that the charges against him were “criminal” within the meaning of Article 6 having regard to the three criteria outlined at paragraph 82 of the Engel judgment (Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). While he accepted that the relevant offence was disciplinary in domestic law and in nature, he argued that the penalty risked rendered it criminal. The maximum penalty risked by him was life imprisonment (if he was tried by general court-martial), two years’ imprisonment (if tried by a district court-martial) or 60 days’ imprisonment (the extended sentencing powers of a CO).

34. Prior to admissibility, the Government noted that the offence was disciplinary in domestic law and in nature and considered that neither the penalty risked nor that awarded was sufficiently severe as to “transform” a disciplinary offence into a criminal one. Following admissibility, the Government did not comment on the applicability of Article 6.

35. The Court notes that it remains undisputed that the starting-point, for the assessment of the applicability of the criminal aspect of Article 6 of the Convention to the present proceedings, is the criteria outlined at paragraph 82 of the above-cited Engel judgment:

“...[I]t is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.

The very nature of the offence is a factor of greater import. ...

However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring.”

36. In its more recent judgment in the case of Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003‑X), the Court clarified as follows:

86. In addition, it is the Court’s established jurisprudence that the second and third criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere .... This does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge ...

...

120. The nature and severity of the penalty which was “liable to be imposed” on the applicants ... are determined by reference to the maximum potential penalty for which the relevant law provides ...

The actual penalty imposed is relevant to the determination ... but it cannot diminish the importance of what was initially at stake (see Engel and Others, cited above, p. 36, § 85, together with Demicoli, Garyfallou AEBE and Weber, loc. cit.).”

37. In its Ezeh and Connors judgment, the Court referred specifically to the following extract from paragraph 82 of the Engel judgment:

“In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so.”

and went on to conclude (at paragraph 126) that:

“Accordingly, given the deprivations of liberty liable to be and actually imposed on the present applicants, there is a presumption that the charges against them were criminal within the meaning of Article 6, a presumption which could be rebutted entirely exceptionally, and only if those deprivations of liberty could not be considered “appreciably detrimental” given their nature, duration or manner of execution.”

38. The offence at issue in the present case (using insubordinate language to a superior officer) was, in the Court’s view, disciplinary in domestic law and in nature. It was one of the service disciplinary offences listed in the 1955 Act (see paragraphs 19-22 above) to be prosecuted by the services only. Its aim was to maintain discipline within the armed forces and there was no apparent civilian criminal equivalent (Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, § 71).

39. However, the Engel criteria being alternative and not necessarily cumulative, the “criminal” nature of the relevant “offence” could, in principle, be determined solely on the basis of the nature and severity of the sanction.

40. It was not disputed, and the Court finds, that the applicant’s confinement in a locked battalion guardroom amounted to a deprivation of liberty (the above-cited Engel judgment, at § 63 and Stephen Jordan v. the United Kingdom, no. 30280/96, § 25, 14 March 2000). Since a deprivation of liberty was liable to be and was actually imposed on the applicant, there was a presumption that the charge against him was “criminal”, a presumption which could be rebutted entirely exceptionally and only if his deprivation of liberty could not be considered “appreciably detrimental” given its nature, duration or manner of execution (the above-cited Ezeh and Connors judgment, at § 126).

41. The parties disagreed on the severity of the penalty “liable to be imposed”: the Government argued that it was 28 days and the applicant maintained that it was either life imprisonment, two years or sixty days for the reasons outlined above. However, the applicant did not select trial by court-martial and the CO did not take any of the steps required by Regulation 31 (and listed at paragraph 28 above) in order to obtain extended detention powers in the applicant’s case. Consequently, the sentence “liable to be imposed” was the maximum penalty of 28 days which was available at the moment of the applicant’s summary trial before the CO (Engel, at §§ 24 and 85), this period being the equivalent of an eight-week sentence in a domestic criminal court. The actual sentence imposed was 7 days’ detention.

42. The Court concludes that the deprivation of liberty which was liable to be, and which actually was, imposed on the applicant cannot be regarded as sufficiently unimportant or inconsequential as to displace the presumption as to the criminal nature of the charge against him.

43. It finds that the applicant was charged with a “criminal offence” within the meaning of Article 6 which provision applies therefore to his complaints.

B. Waiver of rights under Article 6 of the Convention

44. The applicant maintained that any waiver by him of a trial by court-martial could not be considered to be valid. The Government observed that the applicant declined to elect trial by court-martial and submitted that there were no important public interest considerations which might suggest that the matter should have been dealt with otherwise than summarily. In such circumstances, they argued that he made a voluntary, informed and unequivocal election to waive his rights under Article 6 of the Convention. Contrary to the position in the case of Thompson v. the United Kingdom (no. 36256/97, 15 June 2004), the present applicant could have chosen a court-martial convened under the 1996 Act which would have fully complied with the requirements of the Convention (Cooper v. the United Kingdom [GC], no. 48843/99, ECHR 2003‑XII). He could have taken legal advice and, even if he could not be legally represented at the summary hearing, he had access to the Accused’s Adviser.

45. The Court recalls that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver’s importance (Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A No. 171, § 66 and Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A No. 227, § 37).

46. It is further recalled that the Court found in the above-cited Thompson case that, even supposing that the Article 6 rights in question could be waived, the circumstances surrounding Mr Thompson’s waiver deprived it of any validity from the point of view of the Convention. The Court gave three reasons.

47. In the first place, it referred to certain structural elements of the summary procedure:

“44. The Court notes ... that the applicant was directly subordinate, and in close structural proximity, to his [CO], a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court-martial. The applicant would also have been influenced by the fact that a summary procedure involved a maximum sentence of 28 days (and 60 days only if extended powers were granted) whereas trial by a district court-martial could have in theory ... led to a sentence of up to two years’ imprisonment. ... Moreover, the fact that the option was presented to him at all meant that his [CO] considered him to be guilty as charged and, further, that he warranted more than a minor punishment. The applicant would have been aware of all of these matters from, inter alia, the information pamphlet which he accepted he would have obtained in Northern Ireland.”

Even assuming the applicant received the post-October 1997 Pamphlet (see paragraph 31 above) as maintained by the Government, the Court considers that the above-cited reasoning remains entirely applicable to the present case, and indeed the Government did not contest this.

48. Secondly, the Court in the Thompson case pointed out that the applicant, as a layman, was not in a position to evaluate his legal position in February 1997 or, consequently, the options to be pursued by him. Legal representation was not allowed at the summary hearing when the opportunity to elect was afforded to an accused which absence, in turn, would have rendered it difficult for a lawyer to comprehensively advise an accused during the period thereafter when the election would have become definitive. The Court considers that this reasoning also remains relevant to the present case despite the Government’s submissions to the contrary: the legal representation position and the role of the Accused’s Adviser were substantively similar in both cases.

49. It is true that the remaining reason given in the Thompson case cannot be applied to the present. When the court-martial option was presented to Mr Thompson, the court-martial system in place at that point was considered by this Court to violate the independence and impartiality guarantees of Article 6 § 1 (Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997‑I). However, when that option was available to the present applicant, the 1996 Act had reformed the army court-martial system so as to comply with the independence and impartiality requirements of Article 6 § 1 (Cooper v. the United Kingdom [GC], no. 48843/99, ECHR 2003‑XII).

50. However, the Court considers that the two matters detailed at paragraphs 47 and 48 above are sufficient to allow it to conclude that, even supposing that the Article 6 rights in question could in principle have been be waived, the circumstances were such that there was no valid waiver by the applicant of his rights under that Article.

C. Merits of the complaints under Article 6 §§ 1 and 3(c)

51. The applicant complained under Article 6 § 1 that the CO was not independent or impartial (since the CO acted as prosecutor and judge) and that the proceedings before the CO were consequently unfair. He also complained that those proceedings were not “public” and that the CO did not constitute a tribunal “established by law”. In addition, he complained under Article 6 § 3(c) that legal representation was excluded from his summary trial. The Government contested the violations.

52. The Court recalls that, in the above-cited Thompson case, it concluded that the summary procedure presented even clearer structural independence and impartiality problems than those established in the above-cited Findlay case and, further, that those proceedings were, consequently, unfair. The Court went on in that case to find that the exclusion of legal representation from the applicant’s summary trial constituted a separate issue from the structural breaches of Article 6 § 1 which had been established and gave rise to an additional violation of Article 6 § 3(c) of the Convention (citing, inter alia, Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 64).

53. The Court does not see any reason in the present case to depart from those conclusions and, for the reasons outlined in detail in paragraphs 46-47 of the Thompson judgment, finds that the summary procedure before the CO violated the independence, impartiality and, consequently, fairness aspects of Article 6 § 1 and that the exclusion of legal representation from the applicant’s summary trial also constituted a violation of Article 6 § 3(c) of the Convention.

54. The Court does not consider it necessary separately to examine his complaints about the “public” and “established by law” elements of Article 6 § 1 of the Convention (the above-cited Findlay judgment, at § 80).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. Article 41 of the Convention provides:

“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.”

A. Damage

56. The applicant claimed 400 pounds sterling (GBP) in pecuniary damages for loss of pay he incurred as a result of his detention and GBP 2,000 in non-pecuniary damage as he felt aggrieved and humiliated by his detention. The Government contested these claims, arguing that the finding of a violation constituted sufficient just satisfaction.

57. As in the above-cited cases of Findlay (at §§ 85 and 88), Ezeh and Connors judgment (at §§ 141-143) and Thompson (at §§ 51-52), the Court considers that it is impossible to speculate as to the outcome of the proceedings against the applicant had the violations of Article 6 §§ 1 and 3(c) of the Convention not occurred.

58. Accordingly, it finds that the present judgment in itself constitutes sufficient just satisfaction for any pecuniary and/or non-pecuniary damage arising from the violations of Article 6 of the Convention established.

B. Costs and expenses

59. The applicant claimed for 20 hours’ work of one lawyer with a charge out hourly rate of GBP 150, amounting to a total sum of GBP 3,000 (exclusive of VAT). The Government considered the appropriate charge out rate to be GBP 100 and contested six of the hours for which the applicant billed for work done in January 2001.

60. The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).

61. It is noted that all of the legal work in the present case was completed after the adoption of the judgment in the above-cited Findlay, and Benham cases, the central relevance of which judgments is evident from the Court’s reasoning on the merits of the complaints (paragraphs 51-54 above). Indeed the applicant and Mr Findlay had the same legal representative. The six hours’ work contested by the Government clearly relates to the applicant’s main observations submitted in response to those of the Government in January 2000, and not January 2001 as the applicant’s just satisfaction submission had incorrectly noted.

62. Having regard to all the circumstances of the case, the Court awards the sum of 2,500 euros (“EUR”) in respect of costs and expenses (inclusive of any VAT which may be chargeable), which amount is to be converted into pounds sterling at the rate applicable on the date of settlement.

C. Default interest

63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holds by 6 votes to 1 that there has been a violation of Article 6 § 1 of the Convention in that the applicant did not have a fair trial by an independent and impartial tribunal;

2. Holds by 6 votes to 1 that there has been a violation of Article 6 § 3(c) of the Convention;

3. Holds unanimously that it is not necessary to examine separately the remaining complaints under Article 6 § 1 of the Convention;

4. Holds unanimously that the findings of a violation of Article 6 constitute in themselves sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

5. Holds unanimously

(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 2,500 (two thousand five hundred euros) in respect of costs and expenses which is inclusive of any VAT chargeable and which is to be converted into pounds sterling at the rate applicable at the date of settlement;

(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;

6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. EarlyJ. Casadevall
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mr Maruste is annexed to this judgment

J.C.M.

T.L.E.

.

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.

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