Source: All England Reporter
Publisher Citation: [2006] All ER (D) 306 (Oct)
Court: European Court of Human Rights
Judge:

Judges Casadevall (President), Bratza, Bonello, Traja, Pavlovschi, Garlicki, Mijovic and Mr T Early (Section Registrar)

Judgment Dates: 24 October 2006

Catchwords

Court-martial - Human rights - Fair trial - Criminal charge - Applicant living with family in Germany, where father corporal in British army, and subject to military law - Applicant charged with murder in Germany - Applicant convicted at court-martial - Whether violation of applicant's right to a fair trial - European Convention on Human Rights, art 6(1).

The Case

The power of military criminal justice should not extend to civilians unless there were compelling reasons justifying such a situation, and, if so only on a clear and foreseeable legal basis. The existence of such reasons had to be substantiated in each specific case. It was not sufficient for the national legislation to allocate certain categories of offence to military courts in abstracto. Moreover, the mere presence of civilians during the proceedings would not of itself provide adequate guarantees of independence and impartiality; the role that civilians played in the court-martial process also had to be taken into account. It followed that in the instant case, where the son of a corporal serving in the British Army in Germany had been tried by a court-martial on a charge of murder, there had been a violation of art6 of the European Convention on Human Rights. The fact that the tribunal had included civilians made no difference.

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