PROCEDURE

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

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

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

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

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

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1973 and lived in Surrey.

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

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

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

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

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

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

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

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

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

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

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