ECHR - Boyle v UK [2008] - Held: violation of Article 5.3

#1
Boyle v United Kingdom (Application no: 55434/00)

The Times has just reported the outcome of Boyle which has ruled in his favour. The ruling gives effect to article 5.3: Everyone arrested or detained ... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial... in the armed forces.

Times Law Report, published 15 Jan 08, p51.

ECHR - FULL TEXT

The case revolved around a complaint by Boyle that he had been held illegally in custody at the behest of his Commanding Officer, who as part of the prosecution, was not an objective adjudicator; nor was he qualified to act in a [quasi] judicial capacity. The ECHR held that he lacked impartiality and independence, and therefore Boyle's human rights had been violated. Their ruling confirms Hood v United Kingdom (Application no: 27267/95) 29 ECHR 365 [1999]



First posted on Rum Ration
 
#2
Errm, I thought the CO was

thingy said:
or other officer authorised by law to exercise judicial power
Armed Forces Act 2006 making this point: http://www.opsi.gov.uk/acts/acts2006/ukpga_20060052_en_4#gp1-pt2-ch1-pb3

And Sections 75 to 77 of the Army Act 1955: http://www.statutelaw.gov.uk/legRes...iveTextDocId=2675303&PageNumber=1&SortAlpha=0

The fact that the CO could be (wheel the guilty b*stard in) considered part of the persecution would make him similar to the entirely legal under ECHR "prosecuting magistrate" role in Code Napoleonic countries?
 
#3
Now i don't understand all the legal mumbo jumbo, but surely the answer is to tell the ECHR to fcuk off and die??????
 
#4
As far as I'm concerned, seeing as the CO was acting under the authority of an Act of the UK Parliament et al, the European Court of Human Rights can, with respect to their learned judges, fcuk of and remember why they aren't all speaking German!
 
#6
Cause the ECHR webserver is having issues, the actual meat of the judgement:

The requirement that the judge or other judicial officer be independent and impartial is a necessary but not sufficient condition for compliance with the requirements of Article 5 § 3 of the Convention. As the Court stated in Schiesser v. Switzerland, judgment of 4 December 1979, Series A no. 34, § 31, in addition, there is both a procedural and a substantive requirement. The procedural requirement places the “officer” under the obligation of hearing himself the individual brought before him; the substantive requirement imposes on him the obligations of reviewing the circumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons.

1. Whether the applicant's CO was a “judge or other officer”

34. In examining the applicant's complaint about the lack of independence and qualifications of “the commanding officer”, the Court notes at the outset that the applicant in particular complained of “the commanding officer” being responsible for discipline within the applicant's unit. Thus, his complaint is directed against his own CO in the 12th Regiment of the Royal Artillery, not against either the CO of the MCTC, who carried out reviews of the lawfulness of his detention from 16 November 1999 onward; or the lieutenant colonel who completed a Special Report on 10 January 2000 (see paragraph 14 above). The Court will therefore confine its examination of the applicant's complaint to the independence and impartiality of this first CO only, covering the period from 6 November to 16 November 1999.

35. The Court considers that there was a violation of Article 5 § 3 in this respect for essentially the same reasons as in Hood, cited above. Even after the introduction of the 1997 Regulations, the CO retained a conflicting prosecution role, a role the Court identified in Hood as giving rise to objectively justified misgivings as to his impartiality (see Hood, cited above, § 57). Although the CO did not draw up the charges himself, he had the power to amend or substitute any charge presented to him (see sections 76(1) and (2) of the 1955 Act as amended, paragraph 24 above, and Schiesser, cited above, § 34). He then had the power to decide whether to dismiss the charge, try it summarily or refer it to a higher authority. Even when the CO referred the charge to a higher authority (as occurred in the present case), the possibility still remained that the CO might play a prosecuting role: he retained the power to take subsequent action to deal with the charge if the prosecuting authority decided not to institute proceedings or to discontinue such proceedings (see Regulation 26 of the 1997 Regulations and Hood, cited above, § 57). Secondly, the conflict remained between the CO's pre-trial detention decision-making and his responsibility for unit discipline (see Hood, cited above, § 58).

36. As a result, the Court considers that the CO was not sufficiently impartial to be considered “an officer authorised by law to exercise a judicial power”. It therefore finds that there has been a violation of Article 5 § 3 of the Convention. In light of this conclusion, it does not consider it necessary to examine the applicant's additional complaints concerning proceedings before this officer, including his alleged lack of qualifications, the alleged lack of legal representation in the proceedings before him and the CO's alleged failure to decide on the applicant's detention on 6 November 1999 (see, for example, Hood, cited above, at § 59).
So, essentially, what they are saying is that COs are not impartial, even though they are authorised by law. Fair snuff, if that's the law our bunch of poliscoundrels have signed us up to. Clearly time to withdraw from that treaty and tear up the HRA, then. Thank God the shit only got three grand.
 
#7
Idrach said:
So, essentially, what they are saying is that COs are not impartial, even though they are authorised by law. Fair snuff, if that's the law our bunch of poliscoundrels have signed us up to. Clearly time to withdraw from that treaty and tear up the HRA, then. Thank God the s*** only got three grand.
And that 3 grand, and more I hope, will go to his brief!
 

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