Martin against the United Kingdom - 22107/93 [2011] ECHR 1668 (14 September 2011)

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(Application No. 40426/98 judgment of 24 October 2006, final on 24 January 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that this case concerns the lack of independence and impartiality of certain court-martial proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

The case concerns the unfairness of certain army court-martial proceedings held in April 1995 against a civilian. The applicant, as a family member residing with a member of the armed forces, was subject to military law. In May 1995 he was sentenced to life imprisonment.

The Court considered that the applicant’s concerns about the independence and impartiality of his tribunal were objectively justified (violation of Article 6, paragraph 1).

The applicant claimed no just satisfaction in respect of non-pecuniary or pecuniary damage. He is serving a sentence of life imprisonment in HMP Wakefield, England. He has fully exercised the appeal options from the original court-martial conviction i.e. appeal to the Courts-Martial Appeal Court and thereafter the House of Lords (now the Supreme Court).

Section 34(1)(b) of the Courts-Martial (Appeals) Act 1968 provides that, “if it appears to the Secretary of State, upon consideration of matters appearing to him not have been brought to the notice of the court-martial at the trial, to be expedient that the finding of the court-martial should be considered or re-considered by the Appeal Court... [he] may refer the finding to the Court”. No referral has been made by the Secretary of State under this provision and the applicant has not requested the Secretary of State to do so.

Independence and impartiality of the tribunal: The European Court noted that the essential safeguards lacking in the Findlay case (Application No. 22107/93, judgment of 25/02/1997), with respect to the functions and powers of the convening officers and the lack of independence of the members of the tribunal from the convening officers, were also lacking in the present case. The same legislative and regulatory scheme applied to both cases. The Findlay case was closed by the Committee of Ministers’ Resolution DH(98)11. That resolution noted, inter alia, the entry into of the Armed Forces Act 1996 which abolished the post of convening officer, split the functions of that post between other authorities, and provided that a judge advocate be a member of a court-martial.

The Armed Forces Act 2006 has also subsequently been introduced, which creates a single system of service law for all of the services and under the provisions of which a standing court-martial is established (see below).

Determination of criminal charges against civilians by military courts: The Armed Forces Act 2006 provides that certain civilians, when outside the United Kingdom, such as dependants of members of the armed forces living with them, are tried by the Service Civilian Court or by the standing court-martial. The Service Civilian Court has a more limited jurisdiction than the court-martial: currently it may only sit outside the British Isles and it is precluded from dealing with the most serious service offences, for example, criminal offences that could not be dealt with by a Magistrates’ court or Youth Court in England and Wales. A right of appeal lies from the Service Civilian Court to the court-martial.

For both the Service Civilian Court and the court-martial the judge advocate is a civilian judge. In the Service Civilian Court, the only civilian member is the judge advocate. In the court-martial, there are, additionally, lay members whose main function - like that of a jury in the English Crown Court - is to decide on guilt or innocence. The 2006 Act enables the court-martial to be constituted, when it deals with civilians, so that it contains no military lay members. Where the defendant is a civilian, all the members of the court will also be civilians, unless there are considered to be compelling reasons sufficient to justify within Article 6 of the Convention one or more military members.

Any appeal from the court-martial by a civilian defendant is to the Court-Martial Appeal Court which is composed entirely of civilian judges of the Court of Appeal. Any further appeal will be to the Supreme Court which is also composed entirely of civilian judges

The judgment of the European Court was published in European Human Rights Reports at (2002) 34 EHRR 53 and disseminated to the relevant domestic authorities.

The government considers that the measures adopted have remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
--	-	8 370 EUR	8 370 EUR
Paid on 11/04/2007

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You are here: BAILII >> Databases >> European Court of Human Rights >> Martin against the United Kingdom - 22107/93 [2011] ECHR 1668 (14 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1668.html Cite as: [2011] ECHR 1668