Findlay v. The United Kingdom

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF FINDLAY v. THE UNITED KINGDOM

(110/1995/616/706)

JUDGMENT

STRASBOURG

25 February 1997

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1996. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed below. List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare) The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC 's-Gravenhage) SUMMARY Judgment delivered by a Chamber (*This summary by the registry does not bind the Court) United Kingdom - independence and impartiality of court-martial (Army Act 1955) I. The scope of the case A. The complaints under Article 6 1 of the Convention Court cannot entertain new complaints - however, all matters complained of were raised in substance before Commission. B. The complaint concerning Article 25 of the Convention and Article 2 of the European Agreement relating to Persons Participating in Proceedings before the European Commission and Court of Human Rights Issue concerning complaint by Judge Advocate General to Solicitors' Complaints Bureau was not pursued. C. The new legislation Court cannot rule on legislation in abstracto - notes with satisfaction changes made to court-martial system by Armed Forces Act 1996. II. Article 6 1 of the Convention A. Applicability Article 6 1 clearly applicable since proceedings involved determination of sentence following guilty plea. B. Compliance Convening officer central to prosecution and closely linked to prosecuting authorities - inter alia he decided which charges should be brought, convened court-martial, appointed members and prosecuting and defending officers. Members of court-martial were all military personnel subordinate in rank to convening officer who, as confirming officer, could vary sentence imposed. Defects could not be corrected by subsequent review proceedings since applicant entitled to first instance tribunal meeting requirements of Article 6 1. Conclusion: violation (unanimous) III. Article 50 of the Convention 1. Damage: Court cannot speculate as to outcome of court-martial had there been no violation - no compensation awarded. 2. Costs and expenses: awarded in full. Conclusion: respondent State to pay specified sum (unanimous).   Court's case-law referred to 18.6.1976, Engel and Others v. the Netherlands; 15.7.1982, Eckle v. Germany; 25.3.1983, Silver and Others v. the United Kingdom; 22.10.1984, Sramek v. Austria; 26.10.1984, De Cubber v. Belgium; 21.2.1986, James and Others v. the United Kingdom; 19.4.1994, Van de Hurk v. the Netherlands; 23.10.1995, Schmautzer v. Austria; 22.11.1995, Bryan v. the United Kingdom; 21.2.1996, Singh v. the United Kingdom; 10.6.1996, Pullar v. the United Kingdom In the case of Findlay v. the United Kingdom[fn1] , The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[fn2] as a Chamber composed of the following judges: Mr R. Ryssdal, President, Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr J.M. Morenilla, Sir John Freeland, Mr D. Gotchev, Mr P. Jambrek, Mr K. Jungwiert, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 27 September 1996 and 21January 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 8 December 1995, within the three-month period laid down by Article32 1 and Article47 of the Convention. It originated in an application (no.22107/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article25 by MrAlexander Findlay, a British citizen, on 28 May 1993. The Commission's request referred to Articles44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 1 of the Convention. 2. In response to the enquiry made in accordance with Rule33 3(d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule30). 3. The Chamber to be constituted included ex officio SirJohnFreeland, the elected judge of British nationality (Article43 of the Convention), and MrR. Ryssdal, the President of the Court (Rule21 4(b)). On8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, MrJ.M.Morenilla, Mr D. Gotchev, Mr P. Jambrek and Mr K. Jungwiert (Article43 in fineof the Convention and Rule21 5). 4. Through the Registrar, the President of the Court consulted the Agent of the United Kingdom Government ("the Government"), the applicant's lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules37 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant's memorial on 28 June 1996 and the Government's memorial on 4 July 1996. On 29 August 1996 the President decided to admit to the Court file an additional memorial submitted by the applicant which had been received by the Registrar on 7 August 1996 (Rule 37 1). 5. In accordance with the President's decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25September 1996. The Court had held a preparatory meeting beforehand. There appeared before the(a) for the Government Ms S. Dickson, Foreign and Commonwealth Office,Agent, Mr P. Havers, Q.C. Mr J. Eadie, Barrister-at-Law, Counsel, Mr G. Rogers, Ministry of Defence, Ms J. Murnane, Ministry of Defence, Mr D. Woodhead, Ministry of Defence,Advisers, (b) for the Commission Mr N. Bratza, Delegate, (c) for the applicant Mr J. Mackenzie, solicitor, Counsel, Mr G. Blades, solicitor, Mr D. Sullivan, solicitor, Advisers. The Court heard addresses by Mr Bratza, Mr Mackenzie and Mr Havers. AS TO THE FACTS I. The circumstances of the case 6. The applicant, Alexander Findlay, is a British citizen who was born in 1961 in Kilmarnock, Scotland and now lives in Windsor, England. 7. In 1980 he joined the British Army and became a member of the Scots Guards. His service was due to terminate in October or November 1992 when he would have received a Resettlement Grant and, at the age of sixty, an army pension. 8. In 1982 Mr Findlay took part in the Falklands campaign. During the battle of Mount Tumbledown he witnessed the death and mutilation of several of his friends and was himself injured in the wrist by a mortar shell blast. According to the medical evidence prepared for his court-martial (see paragraphs 11-13 below), as a result of these experiences he suffered from post traumatic stress disorder ("PTSD"), which manifested itself by flashbacks, nightmares, feelings of anxiety, insomnia and outbursts of anger. This disorder was not diagnosed until after the events of 29 July 1990 (see paragraph 10 below). 9. In 1987 he sustained an injury during training for service in Northern Ireland when a rope which he was climbing broke and he fell to the ground, severely damaging his back. This injury was extremely painful and affected his ability to perform his duties, which, again according to the medical evidence, led him to suffer from feelings of stress, guilt and depression. 10. In 1990 the applicant, who had become a Lance Sergeant, was sent with his regiment to Northern Ireland. On 29 July 1990, after a heavy drinking session,he held members of his own unit at pistol point and threatened to kill himself and some of his colleagues. He fired two shots, which were not aimed at anyone and hit a television set, and subsequently surrendered the pistol. He was then arrested. 1. The medical evidence 11. On 31 July 1990 an ex-naval psychiatrist, DrMcKinnon, examined Mr Findlay and found that he was responsible for his actions at the time of the incident. However, a combination of stresses (including his back injury and posting to Northern Ireland) together with his heavy drinking on the day, had led to an "almost inevitable" event. Dr McKinnon recommended "awarding the minimum appropriate punishment". Following this report, the decision was taken to charge Mr Findlay with a number of offences arising out of the incident on 29 July (see paragraph 14 below). 12. In order to establish that he was fit to stand trial, at the request of the army he was examined on two occasions by Dr Blunden, a civilian consultant psychiatrist who had been employed by the Ministry of Defence since 1980. >