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FOURTH
SECTION
CASE OF
BELL v. THE UNITED KINGDOM
(Application
no. 41534/98)
JUDGMENT
STRASBOURG
16
January 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:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R.
Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. 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
- 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.
- 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.
- 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.
- 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).
- By
a decision of 15 November 2005, a Chamber of the Fourth Section of
the Court declared the application partly admissible.
- 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
- The applicant was born in 1973 and lived in Surrey.
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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”.
- 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.
- 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
- 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
- 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).
- 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).
- 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
- 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
- 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).
- 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.
- 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
- The
maximum duration of the imprisonment for the offence of using
insubordinate language is not defined under the 1955 Act.
- 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)).
- 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
- 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.
- 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
- 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
- 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).
- 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.
- 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.”
- 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.).”
- 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.”
- 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).
- 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.
- 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).
- 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.
- 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.
- 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
- 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.
- 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).
- 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.
- 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.
- 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.
- 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).
- 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)
- 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).
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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.
- 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).
- 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.
- 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
- 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
- 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;
- Holds by 6 votes to 1 that there has been a
violation of Article 6 § 3(c) of the Convention;
- Holds unanimously that it is not necessary to
examine separately the remaining complaints under Article 6 §
1 of the Convention;
- 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;
- 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;
- 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. Early J. Casadevall
Registrar President
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.
