More about Jaloud

Phil Cave helpfully posted yesterday about the European Court of Human Rights Grand Chamber's decision in Jaloud v. The Netherlands. The decision merits study from a variety of perspectives. One that is of particular interest is the court's treatment of the objection that a member of the Arnhem Court of Appeal was a serving military officer. Background information from the judgment:

F.  The Military Chamber of the Arnhem Court of Appeal

64.  At the relevant time, Article 9 of the Code of Military Criminal Procedure (Wet militaire strafrechtspraak) provided that the benches of the Military Chamber of the Arnhem Court of Appeal should consist of two judges of the Court of Appeal, one of whom should preside, and one military member. The military member should be a serving officer holding the rank of captain (kapitein ter zee, Royal Navy), colonel (kolonel, Royal Army), group captain (kolonel, Royal Air Force) or higher, who was also qualified for judicial office; he was promoted to the titular rank of commodore (commandeur, Royal Navy), brigadier (brigadegeneraal, Royal Army) or air commodore (commodore, Royal Air Force) if he did not already hold that substantive rank. He could not be a member of the Royal Military Constabulary. The military member was appointed for a term of four years, renewable once for a further such term; compulsory retirement was at the age of sixty (Article 6 § 4 of the Code of Military Criminal Procedure).

65.  Section 68(2) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie) provides that the military members of the Military Chamber of the Arnhem Court of Appeal participate as judges on an equal footing with their civilian colleagues and are subject to the same duties of confidentiality (sections 7 and 13 of that Act) and functional independence and impartiality (section 12); and also that they shall be subject to the same scrutiny of their official behaviour as civilian judges (sections 13a–13g). The latter involves review of specific behaviour by the Supreme Court (Hoge Raad), initiated, at the request of an interested party or proprio motu, by the Procurator General (procureur-generaal) to the Supreme Court.

This is what the court held on the applicant's objection:

iii.  The military member of the Military Chamber of the Arnhem Court of Appeal

195.  The applicant argued that the independence of the Military Chamber of the Court of Appeal was tainted by the presence of a serving military officer in its midst. The Government argued that the independence of the Military Chamber of the Court of Appeal was guaranteed.

196.  In the present case, the Court has had regard to the composition of the Military Chamber as a whole. It sits as a three-member chamber composed of two civilian members of the Arnhem Court of Appeal and one military member. The military member is a senior officer qualified for judicial office; he is promoted to titular flag, general or air rank if he does not already hold that substantive rank (see paragraph 64 above). In his judicial role he is not subject to military authority and discipline; his functional independence and impartiality are the same as those of civilian judges (see paragraph 65 above). That being so, the Court is prepared to accept that the Military Chamber offers guarantees sufficient for the purposes of Article 2 of the Convention.

This brief treatment of the issue would seem to doom the similar objection that was lodged in the Dutch case concerning whether Col. Thom Karremans and two other Dutchbat officers should be prosecuted in connection with the Srbrenica massacre.

Postscript: This is a potentially significant aspect of the decision, but despite its brevity and unanimous support, it leaves a variety of questions on the table. Looking solely at terms of office, it indicates that a serving officer can be independent even if the judgeship comes with a term only four years long (renewable once). This may not satisfy the Human Rights Committee and regional human rights treaty bodies. Would Strasbourg apply a different test if the court were composed of a majority, rather than a minority, of such officers?

Looking beyond judicial tenure, what if a system does not provide for titular promotion to flag or general officer rank? What if a uniformed judge remains subject to normal military authority and discipline? What if the judge is subject to judicial conduct discipline only by other military officers such as a uniformed Judge Advocate General, rather than by civilian judicial authorities?