Tuesday, February 27, 2018

OSCE summary of jurisprudence on military courts

The following appears in OSCE Office for Democratic Institutions and Human Rights, Legal Digest of International Fair Trial Rights 68-70 (2012):

3.3.4 Military tribunals

Military tribunals may be used in two contexts, both of which require compliance with independence and impartiality. The first and most common use of military tribunals is for disciplinary procedures against military personnel that, depending on the nature of the charge and the purpose and severity of the applicable penalty, may amount to a criminal proceeding for the purposes of Article 14 of the ICCPR and Article 6 of the ECHR (See also 1.1).262 The second situation is where military tribunals are used to try military personnel, and sometimes civilians, in respect of special categories of offences, such as war crimes.

In principle, a military tribunal is capable of constituting an independent and impartial tribunal, despite the fact that it functions within the framework of the armed forces and, therefore, the executive branch of government.263 This will only be the case so long as sufficient safeguards are in place to guarantee the independence and impartiality of the judicial officers concerned.264 Very often, problems will lie with the ability or otherwise of a military convening officer to dissolve a military tribunal, or to ratify or modify the sentence imposed by the court martial.265 The status of the judicial officers as serving members of the armed service who can themselves be subject to pressure from superiors or to disciplinary proceedings is also a matter of concern.266 This would create the danger that the military judge might allow him or herself to be unduly influenced by considerations that have nothing to do with the nature and merits of the case.267 In Cooper v United Kingdom, however, the European Court of Human Rights held that the Court Martial convened in that case was provided with sufficient guarantees to comply with Article 6 of the ECHR, by virtue of the fact that there was a civilian judge advocate dealing with questions of law and that, although the president was a senior serving officer in the Royal Air Force, his post was full-time and would be held for a number of years prior to his retirement, at a time when that officer had no effective hope of promotion and thus not capable of being influenced by such factors.268

As explained in the UN ECOSOC’s Siracusa Principles, the right to a fair and public hearing may be subject to legitimate restrictions that are strictly required by the exigencies of an emergency situation, i.e., an emergency declared under Article 4 of the ICCPR or Article 15 of the ECHR as one threatening the life of the nation. Even in such situations, however, the Siracusa Principles explain that the denial of certain rights can never occur, even in an emergency situation. This includes the principle that civilians must normally be tried by the ordinary courts but that, where it is found strictly necessary to establish military tribunals or special courts to try civilians, “their competence, independence and impartiality shall be ensured and the need for them reviewed periodically by the competent authority”.269

The Human Rights Committee has noted the existence in many countries of military courts that try civilians. Although neither the ICCPR nor the ECHR explicitly prohibit the trial of civilians by such courts, the current trend at the international level excludes criminal jurisdiction of military courts over civilians. The Human Rights Committee has said that such trials must be in full conformity with the requirements of Article 14 of the ICCPR and that the trial of civilians by military courts should be exceptional, i.e., “limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials”.270 In practice, the Human Rights Committee no longer hesitates to criticize States whose legislation permits military courts to try civilians. In the Concluding Observations on Slovakia’s periodic report, for example, the Committee noted with concern that civilians could be tried by military courts in certain cases, including betrayal of State secrets, espionage and State security. Therefore, the Committee recommended that the Criminal Code be amended so as to prohibit the trial of civilians by military tribunals in any circumstances.271 There is an increasing view by treaty bodies that military tribunals should not try civilians. This is also the position of the European Court of Human Rights, as expressed, for example, in Ergin v Turkey, concerning an applicant newspaper editor charged with incitement to evade military service: “The Court derives support in its approach from developments over the last decade at international level, which confirm the existence of a trend towards excluding the criminal jurisdiction of military courts over civilians.”272

The Ergin v Turkey case is emblematic, in that the European Court of Human Rights put forward the following principles:
a. While it cannot be contended that the ECHR absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny;273
b. The situation in which a civilian must appear before a court composed, if only in part, of members of the armed forces seriously undermines the confidence that courts ought to inspire in a democratic society;274
c. When a court is composed solely of military judges the concern is all the more valid. Only in very exceptional circumstances could the determination of criminal charges against civilians by such courts be held to be compatible with Article 6 of ECHR;275 and
d. The jurisdiction of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case. It is not sufficient for the national legislation to allocate certain categories of offences to military courts in abstracto.276
In order to safeguard the rights of an accused under Article 14(1) and (3) of the ICCPR, the Committee has commented that judges in military or special courts should have the authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.277

262 See, for example, Engel and Others v the Netherlands [1976] ECHR 3, paras 80–85.
263 Engel and Others v the Netherlands [1976] ECHR 3, paras 80–85; and Morris v the United Kingdom [2002] ECHR 162, para 59.
264 Morris v the United Kingdom [2002] ECHR 162, paras 59–77; and Cooper v the United Kingdom [2003] ECHR 686, paras 104–110.
265 Findlay v the United Kingdom [1997] ECHR 8, para 77. See also UN Human Rights Committee, CCPR General Comment 32 (2007), para 22.
266 See, for example: Grieves v the United Kingdom [2003] ECHR 688, paras 86–87; Findlay v the United Kingdom [1997] ECHR 8, para 76. See also UN Human Rights Committee, CCPR General Comment 32 (2007), para 22.
267 Incal v Turkey [1998] ECHR 48, para 72.
268 Cooper v the United Kingdom [2003] ECHR 686, para 118.269 UN ECOSOC, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (1985), para 70(f).
270 UN Human Rights Committee, CCPR General Comment 32 (2007), para 22; Kurbanov v Tajikistan, HRC
Communication 1096/2002, UN Doc CCPR/C/79/D/1096/2002 (2003), para 7.6; Bee v Equatorial Guinea, HRC Communications 1152/2003 and 1190/2003, UN Doc CCPR/C/85/D/1152&1190/2003 (2005), para 6.3; Abbassi v Algeria, HRC Communication 1172/2003, UN Doc CCPR/C/89/D/1172/2003 (2007), para 8.7; and Benhadj v Algeria, HRC Communication 1173/2003, UN Doc CCPR/C/90/D/1173/2003 (2007), para 8.8.
271 UN Human Rights Committee, Concluding Observations: Slovakia, UN Doc CCPR/C/79/Add.79 (1997),
para 20.
272 Ergin v Turkey [2006] ECHR 529, para 45.
273 Ergin v Turkey [2006] ECHR 529, para 42.
274 Ergin v Turkey [2006] ECHR 529, para 43; Öcalan v Turkey [2005] ECHR 282, para 116; Incal v Turkey [1998] ECHR 48, para 72.
275 Ergin v Turkey [2006] ECHR 529, para 44.
276 Ergin v Turkey [2006] ECHR 529, para 47.
277 UN Human Rights Committee, CCPR General Comment 13 (1984), para 15.

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