Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in 1968 and lives in Birmingham. At the relevant time he was a member of the Royal Air Force (RAF).

On 18 February 1998 the applicant, along with a co-accused, was convicted by a district court-martial (pursuant to section 70(1) of the Air Force Act 1955) of theft contrary to the Theft Act 1968. He was sentenced to fifty-six days' imprisonment, to be dismissed from the service and to be reduced to the ranks.

The applicant's court-martial was composed of a permanent president (Wing Commander Rodgers), two other officers of lower rank (Squadron Leader Borthwick and Flight Lieutenant Winks) and a judge advocate.

Wing Commander Rodgers' appointment to the post of permanent president was his last before retirement in September 1998. Although he had been the subject of appraisal reports prior to August 1997, he was not reported on thereafter. The two ordinary members had attended the junior officers' command course in 1993, which included training in disciplinary processes.

By a letter from the reviewing authority dated 3 April 1998, the applicant's representative was informed that neither the findings nor the sentence of the court-martial would be varied. The authority had received advice from the Judge Advocate General.

The applicant's appeal to the Courts-Martial Appeal Court against conviction and sentence was dismissed on 5 February 1999.

The Armed Forces Act 1996 (“the 1996 Act”) came into force on 1 April 1997 and amended, inter alia, the Air Force Act 1955 (references below to “the 1955 Act” are to that Act as amended). Trial by court-martial in the RAF is regulated, inter alia, by the 1955 Act, the Courts-Martial (Air Force) Rules 1997 (“the 1997 Rules”) and the Queen's Regulations for the RAF.

Section 70(1) of the 1955 Act provides that any person subject to air-force law who commits a civilian offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section.

Section 71(1) of the 1955 Act lists the punishments available to a court-martial following conviction and establishes, as a matter of law, the relative positions of each punishment in the hierarchy of punishments available (the “coda” to section 71(1) of the 1955 Act).

The powers of punishment of courts-martial (general and district) are set out in section 85 of the 1955 Act:

“(1) A general court-martial shall have power to try any person subject to air force law for any offence which under this Act is triable by court-martial, and to award for any such offence any punishment authorised by this Act for that offence.

(2) A district court-martial shall have the powers of a general court-martial except that it shall not try an officer or sentence a warrant officer to imprisonment, discharge with disgrace, dismissal or detention, and shall not award the punishment of death or of imprisonment for a term exceeding two years or make an order committing a person to be detained under section 71AA of this Act for a period exceeding two years.”

A person guilty of theft is liable on conviction on indictment to imprisonment for a term not exceeding ten years or, on summary conviction, to imprisonment for a term not exceeding six months or a fine or both (section 7 of the Theft Act 1968).

An allegation that a person subject to air-force law has committed an offence must be reported to the CO of the accused. The CO must investigate the charge, after which he may refer the matter to the higher authority (section 76(5)(b) of the 1955 Act).

The higher authority is a senior RAF officer (the Air Officer Commanding). He is not legally qualified. He must decide, in respect of cases referred to him by a CO, whether to refer the matter back to the CO to be dealt with summarily (unless the accused has already elected trial by court-martial); to refer the matter to the prosecuting authority for a decision as to whether the accused should be prosecuted; or to drop the charges. The higher authority's decision is essentially a command decision, the higher authority being required to ask himself whether there are service reasons for prosecuting or not. Once the higher authority has taken this decision, he has no further involvement in the case.

The role of prosecutor is performed by the prosecuting authority. He is appointed by the Queen and must have been legally qualified for ten years (section 83A of the 1955 Act). The prosecuting authority has a staff of between six to eight RAF officers, who are all legally qualified (section 83C of the 1955 Act) and employed full-time on prosecuting duties. The barristers on staff are, as members of the Bar of England and Wales, subject to the professional and ethical duties of the Bar Code of Conduct (including a duty to act with independence and in the interests of justice). Similar professional obligations apply to the solicitors on staff, who are members of the Law Society of England and Wales. Those lawyers also apply the Code for Service Prosecutors, which has been endorsed by the Attorney General.

Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. The prosecuting authority also prefers the charges, conducts the prosecution (Part II of Schedule I to the 1996 Act) and, in particular, has the power to make all decisions concerning the prosecution (section 83B(7) of the 1955 Act).

The prosecuting authority (Air Vice Marshal Weeden) was, at the relevant time, also Director of Legal Services (RAF). In his prosecuting role, he was answerable solely to the Attorney General. As Director of Legal Services (RAF) he was answerable to the Air Member for Personnel/Commander in Chief of Personnel and Training Command. Air Vice Marshal Weeden was not reported on in relation to his performance as the prosecuting authority, although he was reported on in relation to his role as Director of Legal Services (RAF). Annual appraisal reports on prosecuting officers were drawn up by 1st reporting officers within the prosecuting authority.

CAOs are RAF officers appointed by the Defence Council. Once notified of a prosecution by court-martial by the prosecuting authority, a CAO is responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court-martial. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible CAO. The Courts-Martial Administration Unit discharges the administration and functions of the CAOs on their behalf and at their direction.

A district court-martial comprises a judge advocate, a president and not less than two serving air-force officers (“the ordinary members”) of at least two years' experience in the RAF (section 84D of the 1955 Act).

The Judge Advocate General and his staff of judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as advocates or five years' experience as barristers. A judge advocate is appointed to each court-martial (section 84D(1) of the 1955 Act) by the Judge Advocate General.

A judge advocate is robed and sits in the centre with the president and one of the members on his left and the other member on his right. A judge advocate's role during a court-martial is to ensure the fair and regular conduct of the proceedings. He controls the course of the evidence and rules on legal objections. All rulings and directions on questions of law (including questions of procedure and practice) are given by the judge advocate in open court and are binding on the court-martial (section 84B(3) and (4) of the 1955 Act). In this respect, judge advocates have available to them the same model directions (prepared by the Judicial Studies Board) as are available to Crown Court judges. Once the court-martial hearing has commenced, the power to dissolve it is vested in the judge advocate.

A judge advocate also delivers a summing-up and further directions in open court before the members of the court-martial retire to consider their verdict, in the same way as a Crown Court judge would direct the jury. The judge advocate does not retire with the president and ordinary members and has no vote on verdict: as the members of the court-martial are the sole arbiters of fact, they alone must decide whether the charge has been proved or not (section 96(1) and (1A) of the 1955 Act). Following the deliberation on verdict, the judge advocate checks the findings. If he is satisfied that they are not contrary to law, the findings are announced. If he is not so satisfied, he gives the president and ordinary members further directions in open court, following which they retire to reconsider their findings in the light of the judge advocate's directions (Rule 72(3) and (4) of the 1997 Rules). The judge advocate retires with the other members of the court-martial for the deliberations on sentence (during which he can give, if necessary, guidance on the appropriate sentence to be imposed) and votes on sentence.

The president of a court-martial ensures that the hearing is conducted in accordance with service tradition (Rule 33 (1) of the 1997 Rules). During the deliberations on verdict, the president chairs the discussions.

The post of permanent president was first created in 1941, not by any statutory provision but rather as a matter of policy. Permanent presidents were selected from among serving RAF officers of suitable age and rank; they have always had the rank of wing commander. Legal qualifications or experience were not required. The appointment was full-time, was usually expected to be for a period in excess of three years and, almost without exception, was the officer's last posting before his retirement. The Air Secretary had the power to terminate the appointment of a permanent president, although this never happened. While appraisal reports were not prepared on permanent presidents sitting in army courts-martial, such reports were made on those sitting in RAF courts-martial. However, the reports did not concern their judicial decision-making.

In R. v. McKendry (6 March 2000, unreported), the judge advocate held that a particular permanent president could not be regarded as independent and impartial for the purposes of Article 6 § 1 of the Convention. Although the ruling was limited to the particular case, recourse to permanent presidents was abandoned pending the outcome of the judgment of the House of Lords in R. v. Boyd, Hastie and Spear Saunby and Others (“R. v. Boyd and Others”). That judgment was delivered on 18 July 2002 (see paragraphs 63-76 below), but permanent presidents have not been reintroduced to RAF courts-martial.

There is no requirement that the ordinary members of courts-martial should have formal legal training (Rule 17(b) of the 1997 Rules).

Certain officers cannot be selected for courts-martial. Section 84C(4) of the 1955 Act provides that the CAO, the COs of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned are all excluded from selection. Rule 17 of the 1997 Rules excludes from selection an officer serving under the command of the higher authority referring the case, the prosecuting authority and the CAO. The Queen's Regulations for the RAF (QR 1154(f)) further underline that, so far as is practicable, a court-martial is to be composed of officers from different RAF stations.

At the relevant time (between 1997 and early 2000), ordinary members were randomly selected from a volunteer database for each court-martial. Individual officers were allowed to volunteer by completing a standard form or, alternatively, over the telephone. The information so provided would be entered on a computer database by the CAO. When members were required for a court-martial, the CAO looked for members in the database who were not excluded from participating in a court-martial. If volunteers could not be found in this way, a station would be selected from an alphabetical roster in each command using a separate database. The station would then be notified of those officers on that station, if any, who were on the volunteer database and the station would then be responsible for designating the officer(s) and informing the CAO.

The ordinary members remain subject to RAF discipline in the general sense since they remain RAF officers, but they are not reported on in relation to the carrying out of their duties as members of the court-martial and, in particular, in relation to their judicial decision-making. Attempting to influence, or influencing, a member of a court-martial amounts to the common-law offence of perverting the course of justice and/or to the offence of conduct to the prejudice of good order and air-force discipline (section 69 of the 1955 Act).

When the members have been designated and the court-martial has been convened, the members are sent the Courts-Martial Administration Unit (RAF) briefing notes for court-martial members (see paragraphs 45-62 below) along with a list of prosecution witnesses. The members are required to examine the list and to tell the CAO if any of the witnesses are known to them. They are also advised that, should they subsequently discover that they do know someone, they should inform the judge advocate.

At the start of the court-martial hearing, the names of all of the members of the court-martial are read out and the accused can object to any sitting member (section 92(1) of the 1955 Act and Rule 40 of the 1997 Rules). Each member of an RAF court-martial must take the following oath:

“I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to law without partiality, favour or affection, and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.”

Deliberations of the court-martial members are confidential, a member being forbidden to reveal any opinion or vote. The members of the court-martial are required to speak during deliberations, and at the close of deliberations to vote on verdict and sentence in ascending order of seniority. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president (section 96(5) of the 1955 Act) who, at the time of the applicant's court-martial, gave the reasons for the sentence in open court. Under the present procedure, those reasons are given by the judge advocate (Rule 80(2) of the 1997 Rules).

All guilty verdicts reached, and sentences imposed, by a court-martial must be reviewed by the reviewing authority within prescribed time-limits (section 113 of the 1955 Act). Although ultimate responsibility rests with the Defence Council, the review is, as a matter of practice, generally delegated to the Air Secretary or to such officer who at that time is carrying out the duties of the Air Secretary (section 113(5)(b) of the 1955 Act). Post-trial advice is received by the reviewing authority from the Judge Advocate General, who advises whether or not the conviction or sentence should be altered in the convicted person's favour. This advice is not binding, but is generally accepted by the reviewing authority. It is disclosed to the accused, who has the right to present a petition to the reviewing authority.

The reviewing authority may substitute a finding of guilt which could have been made by the court-martial and if the court-martial must have been satisfied as to the facts which would justify making that finding (section 113AA(2) of the 1955 Act), and it may also “pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper” (section 113AA(4) of the 1955 Act). The reviewing authority also has the power to quash any verdict of guilt and associated sentence and to authorise a retrial (section 113A(1) of the 1955 Act). It is then for the prosecuting authority to decide whether to seek a retrial. While the person concerned is not specifically heard by the reviewing authority on the question of retrial, the decision of the prosecuting authority to seek a retrial can be challenged by an accused as an abuse of process. If convicted following a retrial, an individual retains his access on verdict and sentence to the Courts-Martial Appeal Court (see paragraphs 42-44 below). The reviewing authority gives a reasoned decision and, should it substitute a finding of guilt and/or sentence, that ruling is treated for all purposes as if it was reached or imposed by the court-martial itself.

The Courts-Martial Appeal Court is a civilian court composed of judges from the Criminal Division of the Court of Appeal. A convicted person has a right of appeal to the Courts-Martial Appeal Court against both conviction and sentence (section 8 of the Courts-Martial (Appeals) Act 1968, as amended – “the 1968 Act”).

An appeal against conviction will be allowed where the Courts-Martial Appeal Court finds that the conviction is unsafe, but dismissed in all other cases. The test of what is “unsafe” is the same as that applied in appeals against convictions by the civilian criminal courts. An appeal against sentence may be allowed where the Courts-Martial Appeal Court considers that the sentence is not appropriate for the case (section 16A of the 1968 Act). It has power, inter alia, to call for the production of evidence and witnesses, whether or not produced at the court-martial (section 28 of the 1968 Act). It can also authorise a retrial (section 19(1) of the 1968 Act).

In R. v. McKendry (judgment of the Courts-Martial Appeal Court of 20 February 2001), the appellant pleaded guilty to a charge of absence without leave and was sentenced to, inter alia, 265 days' detention. The reviewing authority rejected his petition and Mr Justice Ouseley gave the judgment of the Courts-Martial Appeal Court. Having noted in detail the advice of the Judge Advocate General to the reviewing authority, he quoted as follows from a prior judgment of the Courts-Martial Appeal Court (R. v. Pattinson, judgment of 25 January 1999):

“In our judgment, the Court has to bear in mind, in dealing with an appeal of this kind, ... the somewhat 'hybrid jurisdiction' which [the Courts-Martial Appeal Court] exercises; in that it is clearly free to correct any injustice, but it nonetheless has to be mindful that those imposing and confirming sentences, particularly, it is to be said ... in relation to an offence of desertion, are particularly well placed and indeed better placed than [the Courts-Martial Appeal Court] in assessing the seriousness of offending in the context of service life.”

Mr Justice Ouseley continued:

“The offence of going absent without leave, as indeed the offence of desertion, is not one in respect of which any civilian parallel exists. The sentencing considerations involve factors that are particular to the armed services, in respect of which their judgment and experience are entitled to great weight. A court should be reluctant to interfere with such courts-martial sentencing decisions, particularly where the Judge Advocate General has reviewed the matter and has dismissed the petition in the terms in which he did here. The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency, the need for deterrence, the significance of rank and the availability of other measures from dismissal to loss of rank and pay, which are in many ways not available or not paralleled in the civilian sphere. Indeed some of those factors would also be of particular weight when the Courts-Martial Appeal Court is dealing with offences which do have parallels in the civilian sphere, and would justify caution in interfering with courts-martial sentences; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere.”

R. v. Holtby-Smith (judgment of the Courts-Martial Appeal Court of 26 February 2003) concerned a retrial following a decision of the reviewing authority. Lord Justice Kennedy in the Courts-Martial Appeal Court stated as follows:

“The Reviewing Authority directed ... that the Prosecuting Authority consider whether there should be a retrial. That was an inappropriate direction on the part of the Reviewing Authority because under section 113A of the [1955 Act] the decision whether or not to order a retrial must be one for the Reviewing Authority itself and not for the Prosecuting Authority, though of course the Reviewing Authority could, if so disposed, canvas the views of the Prosecuting Authority, and of the proposed defendant, as to whether or not there should be a retrial. Following that, the Reviewing Authority was advised of the error of its approach and ... directed a retrial in the interests of justice ... If [such a] decision of the Reviewing Authority was to be challenged, it could only be challenged by means of judicial review ... ”

In R v. Ball and R. v. Rugg (judgment of the Courts-Martial Appeal Court of 12 February 1998), the sentence of the court-martial was one year's detention and the reviewing authority substituted a sentence of one year's imprisonment. The Courts-Martial Appeal Court quashed the latter sentence and replaced it with a sentence of nine months' detention.

The briefing notes are sent by the Courts-Martial Administration Unit to the members selected for a court-martial. The notes applicable at the time of the applicant's court-martial (February 1998) could not be located by the parties. The notes issued in July 1999 are described below.

The introductory part of the notes was entitled “Important points for members of courts-martial” and provided as follows:

“Before trial

Read the accompanying briefing document.

Contact the Courts-Martial Administration Unit (CMAU) if you are wrongly described in the convening order.

If you think that you may not be eligible to sit as a member of the court-martial – e.g. because you know the accused or something about him or a witness, or for any other reason – tell the CMAU or, if you are already at court, ask to see the Judge Advocate privately and tell him. Do not mention your concerns to anybody else.

Do not attempt to find out any details of the case in advance of going to court, and do not speak to any one, or allow anybody to speak to you about it – including when you arrive at the unit where the court-martial is to be held.

At the trial

Once the trial has started you must not talk to anyone about the case (other than the remaining members of the court when all together) for as long as it continues.

Listen carefully to the witnesses and advocates, and to what the Judge Advocate tells you; and reach your decision only on what you hear in court.

You may only question witnesses through the Judge Advocate, or with his permission.

You must not visit the scene of the alleged offence unless the Judge Advocate so directs, when everyone involved in the case will go.

After the trial

You must never reveal anything to anyone about the deliberations on finding or sentence unless required to do so '... in due course of law'.”

Paragraph 2 of the briefing notes emphasised the central role of the judge advocate by telling the members of the court-martial that:

“The main thing to remember is that the Judge Advocate will conduct the court-martial ... He will therefore decide all questions of law, practice and procedure ... He is a member of the court and his rulings and directions are binding on the other members of the court and, of course, the parties to the proceedings. Subject to the Judge Advocate's conduct of the trial, it will be the President's duty to ensure that the trial befits the traditions and standards of the Service; and, in particular, that officers and other persons under instruction do not interfere in the trial ....”

The notes went on to warn the members as follows:

“3. When you arrive at the Unit, do not speak to any Unit personnel ... and certainly not to any Unit executive. If you disregard this direction you may find yourself inadvertently talking to, for example, a witness or a lawyer involved in the case, which in turn might result in you being debarred from the trial or, indeed, the trial being prejudiced. If someone has spoken to you and you have any doubts about your position in this respect, you must tell the Judge Advocate privately before the trial commences.

Mention has been made above of the President's duties. Apart from that, the function of the President and the other officer members is to decide, on the evidence, whether the accused is guilty or not guilty; and if guilty, then to decide, together with the Judge Advocate, the sentence to be imposed. The Judge Advocate will tell you all you need to know about the law and procedure in order to discharge those functions.”

Paragraph 6 informed the members that they were:

“... exempted from occupying public accommodation on the accused's Unit. Justice must manifestly be seen to be done and this aim is assisted by your being seen to avoid local Unit influences.”

Paragraph 8 of the briefing notes went on to advise that:

“Save for resolving any queries members may have about court etiquette and procedure (e.g. putting on and removal of head-dress, etc.) under no circumstances must the President purport to carry out any form of briefing with other members of the court in the absence of the Judge Advocate. However, he should at this stage make sure the officers under instruction are aware of their duty not to do anything which interferes with the conduct of the trial – e.g. must not say anything or make gestures or imply they have any prior knowledge about the case or the accused, etc.”

Paragraphs 9 and 10 provided:

“9. It is the [CAO]'s duty to ensure that the officer members of the court are qualified to act as members, and are not ineligible in any way, i.e.: that they have the requisite number of years' commissioned service, for example; and that they have not sat as members of a court-martial which has tried the accused before, or been involved in any investigation or inquiry into matters relating to the subject matter of the charge against the accused ... However, if before the date of trial, you think you may be ineligible, or not qualified to sit, or for example know something about the accused which could prejudice your impartiality, or know someone who might be a witness in the case (you will receive prior notice from the CAO of persons who may be called as prosecution witnesses) you must not mention the matter to any other member but should tell the CAO who will, if necessary, arrange for your place on the court to be taken by someone else. If your concern about any of the above matters does not arise until you get to court, you must not talk about it to anyone else but should ask to see the Judge Advocate privately and tell him. Likewise, if during the trial you realise that, e.g. you know a witness, you should tell the Judge Advocate privately without mentioning it to anyone else.

Before the court is opened, the Judge Advocate may join you in your room briefly and, if he does, will answer any queries about this briefing document. If he does not meet you beforehand and you have any such queries, you should send him a message to that effect through the Court orderly.”

Paragraph 15 provided that the convening order would be read when everyone was assembled in the courtroom, that the members of the court-martial would identify themselves and that the judge advocate would ask the accused if he or she objected to any of the members. The judge advocate would then administer the oath to each member of the court-martial individually (paragraph 17 of the notes).

Paragraph 20 informed members that, when the opening formalities were complete:

“... The Judge Advocate may then warn the court not to talk to anyone else about the case for as long as it continues. That includes family, friends, work associates, the prosecutor, defence counsel and, most importantly, the accused and anyone who may be a witness. To that end, other than when the Judge Advocate is sitting alone, members are not to leave the courtroom during the trial except to go to the lavatory, and for any overnight or luncheon adjournment; and are not to associate with Unit personnel either professionally or socially until it is over. Refreshments will be brought into the courtroom as required.”

Paragraph 21 of the notes provided:

“The President and members must not, when taking refreshments in the courtroom, or at any other time, including when sitting alongside the Judge Advocate, look at papers lying on the desks of the Judge Advocate, prosecutor or defence counsel. Such papers might include information which the court must not see under any circumstances.”

Paragraph 29 (reflecting Rule 62(2) of the 1997 Rules) pointed out that the president and ordinary members of the court-martial might only put questions to a witness through the judge advocate. If at the end of the witness's evidence they felt that they must hear that witness on a particular question, then the question was to be passed on in writing to the judge advocate, who could put it to the witness in the correct way.

Paragraph 34 (drawing on Rule 69 of the 1997 Rules) provided that, following the addresses of the prosecuting and defence counsel, the judge advocate would sum up the main points of evidence and direct the other members of the court on the law relating to the case. The members of the court-martial were not to ask the judge advocate any questions during his summing-up, but they could ask in writing for further directions, which the judge advocate had to give in open court.

Paragraph 35 (reflecting rule 70 of the 1997 Rules) dealt with deliberations on the verdict:

“While the court is deliberating on the findings, no one is to be present except the President, members and officers under instruction. The President and members are not to separate until the finding has been reached, unless the Judge Advocate directs that in the interests of justice they may separate ... If any person has to leave the courtroom for personal reasons, he must be told by the President not to speak to any person on any account. If the court wishes to hear again evidence recorded by the VCR, the Judge Advocate must be told and, on his direction, the court must be reopened and the passage read in open court.”

Further guidance on deliberations was given in paragraph 38 of the briefing notes:

“The President will normally initiate the discussion on the issue of guilt or innocence. The President should ensure that every court member present gives his opinion as to the finding on each charge separately, in ascending order of seniority commencing with the junior member. A unanimous decision is preferable, but a majority of votes will decide the issue, and the finding of the majority will be recorded as the finding of the court. The President should write down the finding(s) on the record of findings sheet and sign it. Prior to reopening the court, the President should remind any members overruled by the majority that they must now adopt the finding of the court. This is important if it becomes necessary to consider the sentence, as their previous feelings should not influence their decisions.”

Paragraph 39 explained the process by which the judge advocate would review the record of the deliberations to check whether the findings were not contrary to law and his related powers (see also paragraph 29 above). This paragraph also noted that the judge advocate “may, for sentencing purposes, inquire into any finding of fact reached by the court during its deliberation on finding ... though it is anticipated he will exercise this power very sparingly”.

Paragraph 25 explained what was to happen when sentence was being considered, either after a guilty plea or following conviction:

“The court will close to deliberate on sentence, i.e. no one will be present save for the members (including, of course, the Judge Advocate) and any person under instruction. The Judge Advocate will initiate discussion on the sentence and will inform the members, e.g. about punishments and the principles to be observed. Sentence will be determined by a majority of votes if necessary and the opinions of the officer members will be given orally in ascending order of seniority, commencing with the junior member. The Judge Advocate will decide where he votes in the order. In the case of an equality of votes, the President has a second or casting vote on sentence which is exercisable once, i.e. he has a final, determining vote. When sentence has been decided, it is entered on the record of sentence which the Judge Advocate will have. The President will sign that record, as will the Judge Advocate.”

Finally, paragraph 44 provided as follows:

“After the President has announced the trial is concluded and directed the court orderly to carry on, and the Judge Advocate has dissolved the court, the President may invite the officers under instruction to express their views about the case. Thereafter, he should remind them of the oath of secrecy they have taken before releasing them. The court orderly should be instructed to burn or shred all scrap paper. ...”

An aide-mémoire for non-permanent presidents of courts-martial was annexed to the briefing notes (Annex A). This document described the court-martial procedures from the point of view of the duties and role of the president. Annex B to the notes outlined the court orderly's duties (essentially to ensure the smooth running of the court-martial). Annex C contained the general rules for personnel attending courts-martial which concerned the wearing of head-dress, seating arrangements for witnesses and members of the public and other matters of etiquette.

The appellants (from both the RAF and the army) had been convicted by a district court-martial (apart from one who had pleaded guilty). Their appeals to the Courts-Martial Appeal Court were unsuccessful. Before the House of Lords, three of the appellants argued that the permanent president's role meant that their courts-martial lacked independence and impartiality. The remaining appellants challenged more generally the compatibility with Article 6 § 1 of the Convention of their trials by court-martial on charges of an offence against the ordinary criminal law. The House of Lords granted leave to appeal.

Prior to the delivery of the House of Lords' judgment in that case, a Chamber of this Court adopted its judgment in Morris v. the United Kingdom (no. 38784/97, ECHR 2002-I), in which the Chamber concluded that Mr Morris's (army) court-martial, convened under the 1996 Act, fell foul of the independence and impartiality requirements of Article 6 § 1 of the Convention.

Subsequently, the House of Lords unanimously dismissed the appeal in R. v. Boyd and Others. Lord Steyn, Lord Hutton and Lord Scott of Foscote agreed with the detailed judgments delivered by Lord Bingham of Cornhill and Lord Rodger of Earlsferry.

Lord Bingham rejected the challenge to the impartiality and independence of the permanent president, agreeing with the Chamber's finding on the point in Morris, cited above:

“I do not for my part doubt that ... the European Court [was] correct. [Permanent presidents] are appointed to that office in the closing years of their service careers, whether in the army or the [RAF]. They are officers who have no effective hope of promotion and no effective fear of removal. While no doubt they are, as officers, answerable for any extra-judicial delinquency, as any judge might be, they are answerable to no one for the discharge of their decision-making function. The only factual matters on which [the appellants] could rely were the reports written on Wing Commander Chambers who presided [at one of the RAF courts-martial] (there being no report on any army [permanent president]). It would in my opinion be preferable if no annual report were written on officers serving as [permanent presidents], but those on Wing Commander Chambers gave no support in substance to [the appellants'] argument. While praising the wing commander's efficiency and effectiveness as a [permanent president], they made no allusion at all to the quality or outcome of any of his judicial decisions, but instead made express reference to the isolated, unsupervised and independent nature of his role. There is no substance in this challenge.”

As to the role of the ordinary or junior members of the court-martial, Lord Bingham found as follows:

“It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris v. the United Kingdom, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion. It is true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the [permanent president] whose presence was accepted [in Morris] as a guarantee of the rights of the accused. It is also true that junior officers sitting on courts-martial remain subject to army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer's decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the 1955 Act. The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to 'speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator'. They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid 'local unit influences'. They are instructed 'not to associate with Formation or Unit personnel either professionally or socially until the trial is over'. At the outset of the hearing the officers take an oath in terms quoted by the European Court in [paragraph 27 of its judgment in Morris], swearing to try the accused 'according to the evidence' and to 'administer justice according to the Army Act 1955 without partiality, favour or affection'. In considering the independence and impartiality of the [permanent president] both the [Courts-Martial Appeal Court in the appellants' cases] and the European Court in Morris ... attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to 'external army influence', as I feel sure the European Court would have appreciated had the position been more fully explained.”

Turning to the criticism of the reviewing authority in Morris, Lord Bingham noted:

“Its role can certainly be seen as anomalous, since ordinarily a binding decision of any court cannot be disturbed otherwise than (exceptionally) by itself or by a superior appellate court. It is however to be noted that the review of conviction and sentence carried out by the reviewing authority, whether the accused seeks such review or not ... cannot work otherwise than to the advantage of the accused. The reviewing authority cannot substitute conviction of a more serious offence, nor can it substitute a sentence which is in its opinion more severe (section 113AA(4)). This subsection does not confer a discretion, but calls for an exercise of judgment. It is essentially the same exercise of judgment as is required of the Court of Appeal ... which has not given rise to difficulty in practice. If the reviewing authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court-martial, it would be open to the accused to challenge the substituted sentence on appeal to the Courts-Martial Appeal Court, and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal. It is difficult to see any analogy with the situation which the European Court considered in Brumarescu v. Romania ... where the applicant, with a final and irreversible judgment of a court in his favour, was deprived of the benefit of that judgment by a later decision in proceedings initiated by a party not involved in the earlier case. If a court-martial is not an independent and impartial tribunal for the trial of civil offences committed by service personnel in England and Wales, the reviewing authority could not be relied on to save it. But if it is, I find it difficult to understand how the role of the reviewing authority can undermine or reduce its independence and impartiality. [The appellants] recognised the difficulty of this argument and did not seek to sustain the judgment of the European Court on the point.”

The appellants had also generally argued that the whole culture of the services was such as to incline those who took part in courts-martial to attach excessive weight to the values of discipline and morale, to the point of rendering a trial unfair. It was argued that the ritual accompanying courts-martial was oppressive and unfair. Lord Bingham observed:

“I would for my part have no hesitation in agreeing that a court-martial is a court of law, not a parade, and its procedures (while properly involving some formality) should be those appropriate to a court of law and not the parade ground. I would also accept that officers serving on courts-martial will disapprove of those found to have acted in breach of the law governing their respective service. But judges and jurors in the Crown Court will similarly disapprove of those found to have infringed the ordinary criminal law. There is no reason to think that in the former case any more than in the latter such disapproval will infect the tribunal's approach to deciding whether the particular accused has broken the law in the manner charged. Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.”

Lord Rodger rejected the suggestion that, by its very nature, a trial of a civilian offence by court-martial was incompatible with Article 6 § 1 of the Convention and he referred, in this respect, to this Court's judgment in Engel and Others v. the Netherlands (judgment of 8 June 1976, Series A no. 22) and to Morris (cited above, § 59). Since the trial by court-martial did not in itself violate Article 6 § 1, the decision as to whether the court-martial was to be regarded as an independent and impartial tribunal depended on the safeguards which were in place. He noted generally in this respect:

“A submission of this kind requires one, as a starting-point, to consider what is meant by the requirement that a tribunal should be independent and impartial. As the European Court noted in Morris ... the concepts of independence and objective impartiality are closely linked. In the present cases, in substance, the court-martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant service authorities, especially superior officers who might wish to secure some particular result, supposedly in the interests of the morale or discipline of the service or of some particular unit. As a result of the abolition of the role of the convening officer by the 1996 Act, no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution. On the other hand, Article 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part. What matters is that, while sharing the values of the service community, the members of the court-martial should put aside any prejudices which they may have and act – and be seen to act – independently and impartially in deciding the issues in the case before them.”

As to permanent presidents, Lord Rodger observed that, while there had been no appraisal reports on permanent presidents in the army since 1997, the RAF had continued the practice of preparing reports on permanent presidents. He was of the view that “that practice [was] undesirable and, as the army experience show[ed], unnecessary. It would be better if it were discontinued”. However, he went on to observe that such reports generally, and the ones completed in the case before him, commented on the manner in which the permanent president had tackled his role as a permanent president (referring to the administrative aspects of the job) and did not bear on his actual decisions when sitting in a court-martial. Indeed, Lord Rodger noted that the reports in question had recognised that the permanent president's role was one in which the president was “isolated and unsupervised and which require[d] independence” which the Air Secretary “honour[ed] and respect[ed]”. The reports did not therefore give the slightest reason to doubt the permanent president's independence. On the contrary, he considered that

“ ... all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president. Even had anyone wished to intrude, the oath of secrecy taken by the members of courts-martial would have made it impossible to investigate those decisions.”

As to the other members of the court-martial, Lord Rodger noted the conclusion of the Chamber in Morris. He also observed, however, that “for whatever reason ... the European Court was given rather less information than the [House of Lords] about the safeguards relating to the officers serving on courts-martial”. He drew parallels between the members of the court-martial and jurors, noting that, while jurors brought certain prejudices and experiences with them to a trial, the safeguards of an oath and the trial judge's directions were considered by the domestic courts and by the European Court to be sufficient to ensure that jurors put aside their prejudices and reached a just verdict on the evidence. The members of courts-martial took a similar oath and the judge advocate gave them the same kind of directions which a trial judge would have given jurors: there was no reason to suppose that members of a court-martial would be less faithful to their oath or less diligent in applying the directions given by the judge advocate than would jurors, particularly when “trust and obedience to commands” were important to the officers sitting on a court-martial.

Indeed, Lord Rodger considered that the steps taken to ensure that the members of a court-martial acted independently and impartially were, on one view, even more strict than with a jury. Those steps had not, he noted, been outlined to the Chamber in Morris. He went on to detail those steps. In this connection, he referred to the briefing notes sent to members of the court-martial and noted as relevant safeguards those matters outlined at paragraphs 2, 3, 4, 6, 8, 9, 20, 21, 25, 29, 30, 33, 35, 36, 39, 40, 42 and 45 of those notes. Lord Rodger commented on these safeguards as follows:

“The various provisions which I have quoted from the briefing notes for the members of courts-martial reinforce significantly the message, proclaimed in any event by the oath and the directions of the judge advocate, that the members are to act independently and impartially. In order to be seen to avoid local unit influences, the members are not to stay in public accommodation at the accused's unit. They are not to speak to unit personnel and especially not to any officer who may be attending the trial – at the risk of being debarred from the trial or indeed of the trial being prejudiced. They are not to associate either professionally or socially with such personnel until the trial is over. There is a veto on the president briefing the other members of the court in the absence of the judge advocate. The members are to tell the court administration officer if they know something about the accused which could prejudice their impartiality or if they know someone who might be a witness in the case. The members are warned not to talk to anyone else about the case as long as it continues. They are not to look at any papers which are before the judge advocate, prosecutor or defence counsel, for fear of seeing something which they ought not to. When they deliberate on conviction or sentence, the most junior member is to give his opinion orally first – again, obviously, with the aim of ensuring that the junior members express their own personal view, uninfluenced by the more senior members. In terms of the members' oath their deliberations are to be kept secret and this secrecy is further ensured by the instruction to the court orderly at the end of the proceedings to burn or shred all scrap paper. Again, the object is to prevent the members feeling, or coming under, any outside pressure during or after the trial by reason of their participation in the decision in the case.

[The appellants] did not suggest that these were other than genuine instructions to the members which they were intended to observe. Nor was it suggested that the instructions were in practice ignored or that they had been ignored in these particular cases. But if they are indeed observed, I find it hard, if not impossible, to see how anyone either in the court or, more particularly, outside the court could improperly influence the members' decision either on conviction or on sentence. Certainly, it is hard to see what more could be done to ensure that, while sitting in the court-martial, the officers act not as officers subject to command but as independent and impartial members of the court, reaching the verdict and determining the sentence according to law but according also to their own individual conscience.”

Lord Rodger noted that there were, however, two differences between members of a court-martial and an ordinary jury, differences which he concluded did not undermine the independence of the former:

“First, the routines, the periods of boredom and the pleasures, pains and pressures of service life would be unknown to most jurors today, although they would have been familiar to many of their fathers and grandfathers. By contrast, members of a court-martial know all about them and about the society in which the accused lives and works. [The appellants' counsel] suggested that officers on a court-martial, imbued by their training with notions of rank and discipline, would always tend to believe the evidence of a fellow officer or a non-commissioned officer rather than the evidence of a private. By contrast, he said, members of a jury, who carried no such burden of preconceptions, would be able to see more clearly and judge purely on the evidence before them. Of course, this submission was really just a matter of assertion. There was, and could be, no evidence to back it up. Indeed, it was somewhat undermined by the conviction of [two of] the appellants ... [Those appellants'] conviction was based on the evidence of [two Guardsmen] ... In accepting the guardsmen's evidence, the court-martial must have disbelieved the evidence of their superiors in rank ... In any event, it is possible to fashion an argument – equally a matter of assertion – that officers who are familiar with service life and who are in close contact with service personnel of all ranks may well be less impressed by mere rank and better able to gauge the underlying realities than jurors confronted for the first time with officers or non-commissioned officers telling an apparently plausible tale. Viewed in this light, the specialised knowledge and experience of the members of a court-martial could be seen as a positive advantage rather than as a disadvantage. However that may be, I see no reason to think that, when duly directed by the judge advocate, officers on a court-martial cannot properly assess the evidence and return a true verdict based on it. I therefore reject the appellants' argument on this point.

The members of a court-martial perform a role in deciding sentence which is no part of a jury's function in the United Kingdom. I accept that, in determining sentence, the members will indeed have regard to such issues as the impact of the offence on service morale and discipline. They will, inevitably, be more aware of these effects than a civil judge would be. Therefore, while the safeguards of the independence and impartiality of the members should mean that they approach their verdict in much the same way as jurors in a civil trial, it cannot be assumed that, when passing sentence, the court-martial will necessarily give exactly the same weight to these service factors as would a Crown Court judge. The sentences which a court-martial passes may therefore not coincide exactly with the sentences which a civil judge would pass on the same facts. In my view that does not call the decisions of the courts-martial into question, either generally or in terms of Article 6. Any difference in sentencing does not mean that the members are not independent or impartial, but merely that, though both independent and impartial, they may assess the various factors differently ... There are ... two additional points to bear in mind. The first is that the judge advocate advises the other members on sentence and also has a vote on sentence. He will be able to bring to bear his informed view as a lawyer on what sentence would be suitable. The second safeguard is that any sentence imposed by the court-martial is subject not only to review by the reviewing authority but also to appeal, on the ground that it is not appropriate, with the leave of the [Courts-Martial Appeal Court]. The members of the [Courts-Martial Appeal Court] are civil judges and are in a position to correct any inappropriate punishment that the court-martial may impose by reason of the members' military background.”

Lord Rodger considered that all of these matters had to be borne in mind when considering the particular characteristics of the members of the court-martial to which the Chamber attached importance in Morris. He went on to identify and disagree with the specific concerns expressed by the Chamber in that case as regards the independence of the ordinary members:

“The first was that the officer members had no legal training. That applies also in the present cases and indeed must apply in virtually all cases. As the briefing notes show, officers who may be called upon to sit on courts-martial are given some training by being allowed to sit and observe proceedings, including the members' deliberations. This should mean that, when they are eventually asked to sit, they should not find the procedures wholly unknown or strange, but it goes no further than that. While in Morris v. the United Kingdom the Third Chamber seems to have regarded the lack of formal legal training as a significant defect, as I have already noted, in Engel v. the Netherlands ... the European Court held that the Dutch Supreme Military Court was an independent and impartial tribunal, even though four of the six members were military officers with no legal training. Given the other safeguards which were in place in the present cases, I see no reason to conclude that the absence of legal training undermined the members' independence and impartiality.

The European Court attached importance to the fact that the officers, other than the permanent president, remained subject to army discipline and reports. In so far as the members of the courts-martial in the present cases also remained subject to service discipline, they simply shared the characteristic of all serving members of the armed forces. It must have been equally true of the military members of the Dutch Supreme Military Court in Engel v. the Netherlands. Moreover, the fuller information available to the House about the safeguards in place to protect the independence of the members of courts-martial shows clearly, in my view, that, just like the Dutch officers in Engel v. the Netherlands, the officers in these cases would not have been under the command of any higher authority in their function as members of the courts-martial. Indeed, as [the Ministry of Defence] pointed out, contrary to the assumption of the European Court, there was even a formal legal bar to any superior officer trying to influence their decision, since this would have constituted the criminal offence of attempting to pervert the course of justice.

It is true, of course, that, as in Morris v. United Kingdom, so also in these cases, leaving aside the permanent presidents, the officers sitting on the courts-martial would have remained subject to reports. [The appellants] indeed drew attention to a number of such reports where mention is made of the fact that, during the year in question, the officer concerned had sat as a member of a court-martial. In itself that must be unobjectionable since the information that the particular officer has had this experience may be relevant at some future date if, for instance, consideration is being given to appointing a permanent president. What would be objectionable would be any report which made reference, whether favourable or unfavourable, to an officer's decisions when sitting on a court-martial. But [the appellants] could point to no report where this had been done. The only report which referred to an officer's performance in relation to a court-martial was one relating to [one officer]: 'Her foray into the court-martial arena has brought particular accolades for her thoughtful and incisive contribution to the legal process'. The report showed that [that officer] had acted not only as junior member on several courts-martial but also as assistant defending officer to an airman tried by a general court-martial. It appears that the comment may well have related to this second role. In any event the report makes no comment on any decision reached by [that officer] when sitting as a member of a court-martial. Indeed counsel for the [Ministry of Defence] showed the House a number of statements from officers concerned with personnel matters who had read thousands of annual reports and had never seen mention of such a thing. That being so, again with the benefit of this more detailed information, I would not share the view of the European Court in Morris v. the United Kingdom that the independence and impartiality of officers sitting on courts-martial are compromised by the fact that they remain subject to the system of annual reports.

For all these reasons I consider that those charged with administering the system of courts-martial have been at pains to put in place a series of practical safeguards which are designed to secure the independence and impartiality of those sitting on these courts. Nor is this surprising. There is not a little force in the point made by the [Courts-Martial Appeal Court] that, if service factors are to be seen as an aspect or function of the public interest, they will themselves require that the court-martial process should be, and should be seen to be, fair and impartial and, so far as possible, to achieve accurate results. Otherwise both servicemen and the public would lose confidence in it, with consequential effects on good order and discipline.

Having regard in particular to the additional information which was not before the European Court, I would therefore hold that the safeguards built into the system are indeed such that no fair-minded and informed observer who had considered them would conclude that there was a real possibility that the courts-martial in these cases lacked independence or impartiality in this respect. In other words they were, objectively, independent and impartial. I would accordingly reject the Article 6 challenge based on the role of the officer members.”

Finally, Lord Rodger turned to the reviewing authority and to the finding in Morris that the role played by that authority constituted in itself a reason for finding that a court-martial had not been independent or impartial. Lord Rodger did not agree. Indeed, he noted that even the appellants before him had difficulty in supporting the Chamber's reasoning in Morris on this point. He continued:

“The reviewing authority is, admittedly, an unusual institution. It does not operate like an ordinary court and, at a certain level of abstract theory, its existence could seem to be inconsistent with the charge against an accused being determined by only a system of 'tribunals'. That appears to be the way in which the European Court has treated it. But if, as the court indicates, the issue can also be characterised as relating to the independence of the court-martial, I find it difficult to see how the existence of this body affects that independence. It might, of course, be different if there were any suggestion that the decisions of the courts-martial were influenced by the existence of the reviewing authority, for example, because they tended to convict more readily or to impose heavier sentences in the knowledge that the reviewing authority could always quash them. But [the appellants] made no such submission and there is nothing whatever in the information before the House that would support it. On the contrary, [the appellants] accepted that the provision for review could only be to the benefit, and not to the detriment, of someone who had been convicted. In particular, it could provide a quick and simple means of correcting a mistaken decision by a court-martial.

In reaching its conclusion on this point the European Court was particularly concerned by the fact that the decision as to whether any substituted sentence was more or less severe than that imposed by the court-martial would have been left to the discretion of the reviewing authority. When making this observation the Court does not appear to have been referred to, or to have had in mind, the coda to section 71(1) of the [1955 Act] which establishes, as a matter of law, the relative positions of particular punishments in the hierarchy of punishments set out in the subsection and which deals specifically with how detention and imprisonment are to relate to one another. Particularly when these provisions are taken into account, it is hard to see how, in reality, there is likely to be any scope for the reviewing authority to exercise the kind of discretion that appears to have troubled the European Court. In truth, counsel could refer to no case where any problem as to the relative severity of two punishments had arisen. If, by chance, however, the reviewing authority were to go wrong on the point, the person affected could ask the appeal court for leave to appeal.

In all the cases under appeal except [one], the reviewing authority did not intervene, but the appellants were granted leave to appeal to the [Courts-Martial Appeal Court]. Where they had other arguable grounds of appeal relating to conviction or sentence, the [Courts-Martial Appeal Court] dealt with them, as well as with the Article 6 grounds, in their reasoned judgments. In these circumstances I am, with due respect to the decision of the European Court in Morris v .the United Kingdom, unable to see why the mere existence of the reviewing authority, or the reduction of [a] period of detention [in one case], should lead to the conclusion that the determination of the charges against the appellants was not reached by a 'tribunal' that was 'independent and impartial' for the purposes of Article 6. I would therefore reject the appellants' Article 6 argument based on the role of the reviewing authority.”

In 2002 the rate of acquittals in contested RAF courts-martial was 52%. The rate of acquittals in contested Crown Court trials has been:

Year ending in March 1999: 42.8%

Year ending in March 2000: 42.8%

Year ending in March 2001: 44.3%

Year ending in March 2002: 42%

Year ending in December 2002: 37.4%


The applicants, Mr Latif Guliyev and Cerulla Ramazanov, are Azerbaijani nationals who, respectively, were born in 1947 and 1951 and live in Baku and Sumgayit. They were represented before the Court by Ms L. Claridge and Messrs M. Muller, T. Otty and K. Yildiz of the Kurdish Human Rights Project, lawyers practising in London. The respondent Government was represented by Mr C. Asgarov, Agent of the Republic of Azerbaijan before the Court.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants were members of the Adalet (“Ədalət”) political party, which was in opposition to the ruling party. As it appears from the case file, at the time of the events in question, the applicants’ party was not registered with the Ministry of Justice and, therefore, its activity was deemed illegal by the authorities.

The party had a regional office in Sumgayit. According to the applicants, on 30 August 2001 some people related to the authorities removed from the office’s entrance door the signboard featuring the party’s name. On 10 September 2001 several police officers allegedly arrived in the office, destroyed some of the assets in the premises, forcefully expelled the party members from the premises and sealed up the office door.

On 19 September 2001 the police again unexpectedly arrived in the party’s office in Sumgayit and interfered with the meeting which was held there at that time. The police explained that they had been called by persons in the neighbourhood complaining of the disturbance and noise coming from the office. The meeting participants objected to such interference. Following a dispute between the policemen and the meeting participants, the police took ten men to the police station for search and interrogation. After a few hours of being held at the police station, all arrested were released except for the applicants and one other person.

On 22 September 2001 the investigation department of the Sumgayit City Police Station instituted criminal proceedings against the applicants and issued a bill of indictment, accusing the applicants of resistance to the police and violation of public order. On 23 September 2001 the Sumgayit City Court ordered the applicants’ detention on remand for one month pending trial. On 28 September 2001 the Court of Appeal upheld the detention order.

On 24 December 2001 the Sumgayit City Court convicted the applicants for hooliganism, including the breaking of the public order, assault and resistance to the police authorities. According to the applicants, although a number of witnesses had testified in their favour, the court relied only on testimonies of seven police officers, all of whom testified against the applicants. The court sentenced each applicant to a one year and six months’ term of imprisonment.

The applicants appealed against this judgment, complaining that the case had been fabricated, that the first-instance court had violated a number of procedural rules, and that it had failed to give legal assessment to the testimonies of the defence witnesses. On 13 February 2002 the Court of Appeal dismissed the applicants’ request and upheld the district court’s judgment. The Court of Appeal found that the applicants’ guilt was sufficiently proven by the witness testimonies admitted by the first-d the applicants’ imprisonment sentence to a conditional sentence. The applicants were therefore released.

The applicants lodged a cassation appeal with the Supreme Court, seeking acquittal. On 9 July 2002 the Supreme Court dismissed their appeal and upheld the lower courts’ judgments.

Thereafter, based on a request by the President of the Supreme Court, the proceedings were reopened and the case was referred to the Plenum of the Supreme Court. On 27 January 2005 the Plenum quashed the Supreme Court’s decision of 9 July 2002 and the related judgment of the Court of Appeal of 13 February 2002

On 17 March 2005, the Court of Appeal re-examined the case. It reassessed the evidence and found that there had not been any significant inconsistencies in witness testimonies admitted by the first-instance court. As to the testimonies of witnesses in the applicants’ favour, the Court of Appeal noted that these witnesses were members of the applicants’ political party and that, therefore, their testimonies were not trustworthy and were in any event refuted by the totality of evidence. The Court of Appeal confirmed the applicants’ conviction and their conditional sentence of one year and six months. It also noted in its judgment that it was open to the applicants to file a cassation appeal with the Supreme Court in accordance with the domestic criminal procedure law. The applicants did not, however, make use of this possibility.

According to Article 408.1.1, a cassation appeal or cassation protest may be filed against judgments of appellate-instance courts. Article 409.1 provides that, inter alia, convicted persons shall have a right to file a cassation appeal themselves or through their legal representative.

According to Article 410, depending on the substance of the complaints made before the cassation-instance court, the time-limit for lodging of the cassation appeal may constitute up to 18 months from the date of delivery of the appellate-instance court’s judgment.

Article 412 provides that the cassation appeal must be submitted, in writing, directly to the cassation-instance court.

In accordance with Article 416, the cassation-instance court may quash or amend the appellate-instance court’s judgment, if, inter alia, the latter has refused without justification to examine important evidence presented by a party to the case, breached the procedural rules for assessment of the evidence, delivered a verdict based on inadmissible evidence, and made a mistake in qualification of the crime.


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant, Toma, s.r.o. is a private company registered in the Czech Republic. It was represented before the Court by Mr Petr Pisarovič, a lawyer practising in Břeclav. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

On 27 May 1991 a certain D. brought a civil action against the Racio cooperative, the applicant’s predecessor. By a judgment of 27 August 1991 the Břeclav District Court (okresní soud) dismissed D.’s action. On 14 February 1992 the Brno Regional Court (krajský soud) upheld this judgment.

On an unspecified date in 1992 the applicant company joined the proceedings as one of successors of the Racio cooperative.

On 17 January 1994 the Prague High Court (Vrchní soud), upon D.’s appeal on points of law (dovolání) quashed the judgments of the lower courts and sent the case back to the District Court for further consideration.

On 11 February 1997 the District Court suspended the proceedings on the ground that other proceedings were pending before the same court which could have had an impact on the present proceedings. On 16 March 1998 the Regional Court quashed this decision and sent the case back to the District Court which, on 6 September 2000, again decided to suspend the proceedings. On 31 August 2001 the Regional Court quashed this decision.

By a judgment of 9 April 2003 the District Court delivered a judgment on the merits of Mr D.’s action. On 20 April 2005 the Regional Court decided on the applicant company’s appeal.

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1957 and lives in Pskov, a town in the Pskov Region.

The applicant sued his employer, a regional department of the Federal Debt Recovery Centre, for salary arrears.

On 18 May 2004 the Pskov Town Court awarded him against the Government 342,578 Russian roubles (RUB) in respect of the arrears and RUB 20,000 in respect of non-pecuniary damages. This judgment became binding on 7 June 2004.

In July and December 2004 the applicant sent enforcement papers to the Ministry of Finance, but in September 2005 the Ministry returned the papers, because they did not indicate the Ministry as the defendant and did not specify the financial source to be charged. The applicant asked the Town Court to clarify the judgment, but on 23 November 2005 the court refused this request, because the judgment was clear as it stood. The judgment has not been enforced to date.

In the meantime, on the Government’s request, on 12 November 2004 the Presidium of the Pskov Regional Court quashed the judgment in the part concerning the damages, and rejected this claim. The Presidium found that the courts below had misinterpreted material law.

On 17 April 2006 the Town Court gave two other judgments in the applicant’s favour. In the first judgment it adjusted the outstanding award of 18 May 2004 for the cost of living and awarded RUB 87,357. This judgment became binding on 28 April 2006. In the second judgment the court awarded the applicant RUB 206,672 in respect of salary arrears. This judgment became binding on 3 May 2006.

In May 2006 the applicant sent enforcement papers to the Ministry of Finance, but later the same month the Ministry returned the papers, because they did not specify the financial source to be charged. The applicant sent the enforcement papers to the bailiff’s service, but in December 2006 the service returned the papers, because it was not authorised to enforce debts against the treasury.

Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.


FREIFRAU VON REHLINGEN AND OTHERS v. GERMANY

Eckart Klein;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych

The four applicants are Mrs Alexandra Freifrau von Rehlingen, Mr Matthias Prinz and their two children: Antonia Luisa Alexandrine, and Fidelius Friedrich Günter. They are all German nationals who were born in 1955, 1956, 1990 and 1992 respectively and live in Hamburg.

The applicants were all represented before the Court by the second applicant, Mr M. Prinz, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

According to the initial regulation of Article 1616 of the German Civil Code (Bürgerliches Gesetzbuch) of 18 August 1896, a child born in wedlock would obtain the surname of the father, which would also be the common family name. With the introduction of the Act on the Reform of the Marital and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 14 June 1976, a married couple could choose either of the spouses’ surnames as the family name. Their children would then obtain the same family name. If the parents were unable to choose a family name, the husband’s surname would automatically become the family name according to the then applicable version of Article 1355 § 2 of the German Civil Code. That provision was held to be unconstitutional and incompatible with the prohibition of discrimination against women (Article 3 § 2 of the Basic Law) by the Federal Constitutional Court on 5 March 1991.

The Federal Constitutional Court ordered that, until the legislator had found a new regulation, couples who married after the day of the publication of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames. In such an instance, their children were provisionally able to obtain a compound name composed of both surnames of the parents, in order to leave to the legislator the option to introduce the possibility to obtain such names.

On 1 April 1994, the Act on the Regulation of the Law of Family Names (Gesetz zur Neuordnung des Familiennamensrechts) came into force which corrected the above constitutional flaws. Article 1355 of the Civil Code was amended by giving both spouses the possibility to keep their surnames. According to the henceforth relevant Article 1616 § 2 (replaced in 1997 by Article 1617 § 1 of the Civil Code), a child would either obtain the surname of the father or the mother. Currently, if the parents cannot agree, the competent family court will refer the right to determination to one parent.

A compound name for the child was not provided for by the new Act.

The first two applicants married in 1990 and decided to keep their birth names. After the birth of their children, they applied to the Hamburg Registry Office (Standesamt) in order to obtain for their children the surnames “Freiherr von Rehlingen-Prinz” and “Freiin von Rehlingen-Prinz”. Their applications were to no avail.

On 23 March 1994, they applied again to the Hamburg Registry Office in order to be considered for the period indicated by the Federal Constitutional Court in its judgment of 1991 during which compound names were provisionally permitted. Moreover, they argued that the current law as provided for by the Act on the Regulation of the Law of Family Names was unconstitutional in as far as it precluded compound names for children. Their application was dismissed by the Hamburg Registry Office which found that both children had obtained the last name “Prinz” in accordance with the then applicable Article 1355 § 2 of the German Civil Code.

On 28 June 1994, the Hamburg District Court dismissed the first two applicants’ claim to order the Hamburg Registry Office to register their children with compound names. It held that, both under the present law and under the law that had been in force before the judgment of the Federal Constitutional Court in 1991, their children were not entitled to obtain compound names. The District Court did not find any reasons for the unconstitutionality of the present law, nor had any concerns been raised by academics and legal scholars in that connection. In its judgment of 1991, the Federal Constitutional Court had indicated a provisional period in which compound names could be obtained only with respect to those marriages that were concluded after the date of the publication of the judgment.

The District Court found that that judgment was plain and unambiguous in this respect, and the applicants were clearly not concerned by the provisional period as they had married the year before the judgment was published.

On 21 September 1994, the Hamburg Regional Court dismissed the first two applicants’ appeal against the decision of the District Court of 28 June 1994. The first two applicants’ further appeal was dismissed by the Hanseatic Court of Appeal on 18 September 1995. The court found that Article 1616 § 2 of the Civil Code was constitutional and neither violated the right to a family (Article 6 § 1 of the Basic Law) nor the right to educate one’s own children (Article 6 § 2 of the Basic Law). A positive obligation on the legislator to provide the possibility for children to obtain a compound name could not be derived from the Federal Constitutional Court’s judgment of 1991. On the contrary, the Federal Constitutional Court had granted the legislator a wide margin of appreciation when setting the law on family names, and the provisional period in which compound names could be obtained had only been introduced in order to allow the legislator the choice of all existing options within that margin.

The first applicant lodged a constitutional complaint against the Act on the Regulation of the Law of Family Names in 1995. On 1 August 2000, the Federal Constitutional Court refused to admit that complaint.

On 7 February 2002, the Federal Constitutional Court refused to admit the constitutional complaint (1 BvR 2300/95) of all four applicants lodged in 1995 against the above decisions by referring to a leading judgment of 30 January 2002 (see “Relevant domestic law and practice” below) in which the constitutionality of Article 1617 of the Civil Code had been confirmed.

The applicant children’s younger siblings bear a compound name, but are neither born, nor registered in the birth register, in Germany.

“§ 1 Spouses should designate a common family name (marital name). The spouses shall use the marital name which they have designated. If the spouses do not designate a family name, they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage.

§ 2 By declaration to the registrar, the spouses may designate, as their marital name, the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name. (...)

§ 4 A spouse whose name does not become the marital name may, by declaration to the registrar, attach, before or after the marital name, his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name. This shall not apply if the marital name consists of more than one name. If the name of one of the spouses consists of more than one name, only one of these names may be attached. (...)”

“§ 1 If the parents do not have a marital name but if they have joint parental responsibility, they shall, by declaration to the registrar, designate the surname that the father or the mother has at the time of the declaration as the birth name of the child. (...)

§ 2 If parents make no designation within one month of the birth of the child, the family court shall transfer the right of designation to one of the parents. Subsection (1) applies mutatis mutandis. The court may impose a time-limit on the parent for the exercise of the right of designation. If, after the time-limit has expired, the right of designation had not been exercised, the child shall be given the name of the parent to whom the right of designation was transferred.”

Under German law, authentic compound names are permitted only in very specific circumstances. For example, compound names may be retained if they were used prior to state regulation of the law governing names. Moreover, pursuant to the Act on Change of Family Names and Forenames, compound names may come into being when persons with surnames which are highly common in Germany such as “Schmidt” or “Müller” (so-called Sammelnamen) add another name to render their family name easier to distinguish. Compound names created in this way may be passed on to children.

In a leading judgment of 30 January 2002, the Federal Constitutional Court held, by six votes to two, the former version of Article 1616 § 2 of the German Civil Code (which is identical to Article 1617 § 1 of the current version of the Civil Code) to be constitutional. In particular, the Federal Constitutional Court found that the provision neither constituted a violation of the right to a family (Article 6 § 1 of the Basic Law), the right to educate one’s own children (Article 6 § 2 of the Basic Law) nor the children’s right to protection of their personality rights as guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law.

The Federal Constitutional Court considered that, once children would be allowed to obtain compound names, the number of surnames could exponentiate with each future generation. The next generation would already be able to obtain a surname comprised of four names. Such growing “chains of surnames” would not only be impracticable, they would also be to the detriment of future generations whose surnames would be at risk of losing their function as a means of identification. The Basic Law would not prohibit the legislator from reducing the number of possible surnames to avoid such “name chains” in order to secure the function of the surnames of future generations.

The Federal Constitutional Court considered that a different way of avoiding “name chains” would have been to allow compound names, but to restrict the number of surnames to two. This method, however, would prevent parents who already bear a compound name to give their children a compound name comprised of both parents’ surnames, or obtain such a surname themselves. A person with a compound name could no longer keep his or her surname after marriage and add the surname of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let children obtain compound names would at the same time reduce the choice of surnames for those who already bear a compound name. Such a situation, in which one fundamental right restricts another, would consequently require a balancing of interests, which the legislator had done when introducing the former version of Article 1616 § 2 of the German Civil Code (now Article 1617 § 1). The Federal Constitutional Court stated that the legislator had had several options to balance the above interests. The option which the legislator chose was thereby neither required nor prohibited by the Basic Law.

Lastly, the Federal Constitutional Court found that the former version of Article 1616 § 2 of the German Civil Code did not violate the prohibition of discrimination on grounds of sex as guaranteed in Article 3 § 2 of the Basic Law. If each spouse kept his or her surname after marriage, married couples could choose one of their surnames as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a surname, but this concerned spouses of both sexes alike.

The fact that married couples with different surnames were in practice more likely to choose the husband’s surname for their children was not considered to suggest a different finding. Even though this could possibly indicate a widespread affirmation of traditional marriage patterns, Article 3 § 2 of the Basic Law could not be interpreted as containing a positive obligation on the State to introduce a parents’ right to choose a compound name for their children. In any case, such a regulation had only minor effects on the State’s positive obligation to secure equality of the sexes as contained in the second sentence of Article 3 § 2 of the Basic Law.

That children could still obtain a compound name under certain circumstances, particularly in cases in which one parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name. In both instances, children were only allowed to obtain either the surname of the mother or the father.


The applicant, Mr Ioan Kornelij Komanický, is a Slovakian national who was born in 1943 and lives in Bardejov.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 4 June 2002 the European Court of Human Rights delivered its judgment in application No. 32106/96 filed by the applicant. The case related to the alleged unfairness of domestic proceedings concerning the lawfulness of the applicant's dismissal from a job in which the final decision had been given on 6 March 1996. In its judgment the Court found that (i) there had been a violation of Article 6 § 1 of the Convention in respect of the procedure followed by the national courts when examining the applicant's action, (ii) that it was not necessary to examine separately the applicant's complaint under Article 6 § 1 of the Convention that the dismissal of his action had been arbitrary and (iii) that it was not necessary to rule on the complaint under Article 13 of the Convention. The Court obliged the respondent State to pay the applicant EUR 1,000 in respect of non-pecuniary damage and EUR 100 in respect of costs and expenses. The Court's judgment became final on 4 September 2002. Subsequently the respondent Government paid the sum due to the applicant. The Committee of Ministers of the Council of Europe has not yet concluded its examination of issues relating to the execution of that judgment.

On 28 October 2002 the applicant filed a complaint under Article 127 of the Constitution. He claimed that the Constitutional Court should quash the ordinary courts' decisions relating to his dismissal from a job as the Court had found the relevant proceedings to be contrary to Article 6 § 1 of the Convention. Subsequently the applicant also requested that his dismissal should be declared void and that a job corresponding to his previous position should be offered to him. He also claimed 200,000 Slovakian korunas as just satisfaction.

On 12 March 2003 the Constitutional Court rejected the complaint for lack of jurisdiction. It held that the Constitutional Court Act contained no provision permitting to examine the legal consequences of a judgment delivered by the European Court of Human Rights concluding that a person's rights under the Convention had been violated by Slovakian authorities or to re-open the relevant domestic proceedings on the basis of such a finding. In the absence of any legal basis, a complaint under Article 127 of the Constitution could not serve as a means of ensuring re-examination of a case in which a final decision had been given notwithstanding the European Court's finding that the domestic courts had in such proceedings violated the human rights of the person concerned.

The decision was taken in camera and it indicated that it was adopted by the First Chamber of the Constitutional Court. It was signed by the president of that chamber.

Article 127 of the Constitution, as in force since 1 January 2002, reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person's rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

Under Article 228(1), a party to civil proceedings can challenge a final decision by means of a request for re-opening of the proceedings where (i) facts, decisions or proofs exist which, for reasons beyond his or her control, the party was unable to use in the original proceedings provided that they can bring about a more favourable decision for such a party, (ii) evidence can be taken which could not be taken in the original proceedings provided that this can result in a more favourable decision for the party concerned and (iii) the decision against a party was given in the context of a criminal offence committed by a judge.

Article 230(1) provides that a request for re-opening of proceedings is to be filed within 3 months from the moment when the party concerned learned or could have availed himself/herself of the reason for the request.

Under paragraphs 2 and 3 of Article 230, a request for re-opening of proceedings cannot be filed more than 3 years from the final effect of the decision in question with the exception of cases where a civil court granted a right to a person on the basis of a criminal court's judgment and where such a judgment was subsequently quashed in accordance with the criminal law.