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You are here: BAILII >> Databases >> European Court of Human Rights >> Boyle, Thompson and Bell against the United Kingdom - 55434/00 [2011] ECHR 2269 (2 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2269.html Cite as: [2011] ECHR 2269

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Resolution CM/ResDH(2011)287¹

Execution of the judgments of the European Court of Human Rights

Boyle, Thompson and Bell against the United Kingdom

(Boyle, Application No. 55434/00, judgment of 8 January 2008, final on 8 April 2008;

Thompson, Application No. 36256/97, judgment of 15 June 2004,

final on 15 September 2004;

Bell, Application No. 41534/98, judgment of 16 January 2007, final on 16 April 2007)

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

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern: detention decided on by a person not presenting the requisite guarantees of impartiality and independence (in the Thompson and Boyle cases; violations of Article 5, paragraph 3); lack of compensation for detention (in the Thompson case; violation of Article 5, paragraph 5); lack of independence and impartiality of a summary trial before a commanding officer in the army (in the Thompson and Bell cases, violations of Article 6, paragraph 1); and lack of access to legal assistance of one’s own choosing (in the Thompson and Bell cases; violations of Article 6, paragraph 3(c)) (see details in Appendix);

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

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

Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

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

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

- of general measures preventing similar violations;

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

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)287

Information on the measures to comply with the judgments in the cases of

Boyle, Thompson and Bell against the United Kingdom

Introductory case summary

The Boyle case concerns the lack of impartiality and independence of the applicant’s commanding officer in the Army (CO) who ordered his pre-trial detention in 1999 on a charge of indecent assault (violation of Article 5, paragraph 3).

The Thompson case concerns the detention, summary trial and conviction of the applicant, in 1997, by his CO in the Army for absence without leave. The European Court noted that the CO decided the applicant’s suitability for pre-trial detention after charge and did not refer the decision to detain to a senior or legal officer (violation of Article 5, paragraph 3). In addition, the applicant was unable to obtain compensation for his detention in breach of the Convention, since his detention was lawful under domestic law (violation of Article 5, paragraph 5).

The Bell case concerns the summary trial and conviction of the applicant in 1997 by his CO for using insubordinate language to a superior, in proceedings conducted on the basis of the law applicable after the Armed Forces Act 1996 came into effect on 1 April 1997.

In both the Thompson and Bell cases the European Court found that the applicants had been directly subordinate to their CO. The COs were central to the prosecution of the charge against the applicants and, at the same time, sole judge in the case, giving rise to objectively justified misgivings as to their independence and impartiality (violation of Article 6, paragraph 1).

Finally, in the Thompson and Bell cases the lack of access to legal representation in the applicants’ summary trial did not meet the Convention’s requirement that a person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (violations of Article 6, paragraph 3c).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

In the Boyle case, the applicant’s complaint concerned detention sanctioned by his commanding officer between 6 November and 16 November 1999. After this date the applicant’s detention was decided by another CO whose impartiality and independence was not questioned by the applicant. The applicant was released on 22 February 2000.

In the Thompson case, the applicant was released after serving 28 days’ military detention. Other proceedings against him were discontinued.

In the Bell case the applicant was sentenced to seven days’ detention which he served.

The European Court considered it impossible to speculate as to the outcome of the proceedings against the applicants had the violations of the Convention not occurred and accordingly found that the judgments in themselves constituted sufficient just satisfaction in respect of any non-pecuniary damage arising from the violations established.

Consequently, no other individual measure is considered necessary by the Committee of Ministers.

II. General measures

Violations of Article 5, paragraph 3:

In response to the lack of impartiality of the applicants’ commanding officers (COs), the Army Act 1955 was amended by the Armed Forces Discipline Act 2000 so that a person subject to military law who was kept in custody after being charged with an offence had to be brought before a judicial officer as soon as practicable. Those provisions have now been replaced by Chapter 2 of Part 4 of the Armed Forces Act 2006, which sets out a regime for keeping persons in custody after charge. Under the 2006 Act a person who is kept in custody after being charged with a service offence must be brought before a judge advocate, who is an independent civilian judge, as soon as practicable. The judge advocate decides whether or not to authorise keeping the person in service custody, and can order that the person is kept in custody for a period of up to 8 days. The provisions require that the decision to authorise keeping a person in custody is reviewed at regular intervals by the judge advocate.

Violation of Article 5, paragraph 5:

Under section 6(1) of the Human Rights Act 1998, which came into force in 2000, it is unlawful for a public authority to act in a way incompatible with a right guaranteed by the Convention and under section 8 of the same Act the public authority may be ordered to pay damages if a court finds that such an unlawful act has occurred (see Resolution CM/ResDH(2007)101 Bubbins against the United Kingdom application No. 50196/99).

Violations of Article 6, paragraph 1 and paragraph 3(c) (in the cases of Thompson and Bell):

i) impartial and independent tribunal:

The Army Act 1955 was amended by the Armed Forces Discipline Act 2000 which was subsequently replaced by Part 6 of the Armed Forces Act 2006. The overall effect of these provisions is that persons against whom findings have been made and punishments awarded at summary hearings have an automatic right of appeal to the Summary Appeal Court (SAC). Appeals are by way of a re-hearing before the SAC which consists of one civilian judge advocate, an officer and a third member who is either an officer or a warrant officer. The SAC’s powers of punishment are limited to penalties no more severe than that awarded by the CO at a summary hearing. A soldier is entitled to legal representation and legal aid for appeal proceedings and is informed of these rights in the Rights of a Soldier pamphlet distributed either on arrest and commencement of military custody, when charged with an offence, or before a summary hearing.

In addition where a CO decides that a matter should be dealt with summarily, he must before hearing the charge give the accused the opportunity to elect trial by the Court Martial. Where the accused elects trial by the Court Martial rather than a summary trial before the CO, the sentencing powers of the Court Martial are limited to penalties which could have been imposed by the CO for the offence. An accused is entitled to legal representation at the Court Martial.

ii) legal representation:

Although not entitled to legal representation at the summary hearing, an accused soldier is entitled to legal advice at his/her own expense, and is entitled to legal representation and legal aid for appeal proceedings (see above).

In the case of Boyle the judgment of the European Court was reported in The Times (15/01/2008), and in the All England Reports at [2008] All ER (D) 02 (Jan). The Thompson judgment was published in the European Human Rights Reports at (2005) 40 EHRR 11. The Bell judgment was published in the All England Digest at [2007] All ER (D) 62 (Jan).

3. Conclusions of the respondent state

The government considers that no individual measure is required in these cases, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.