Editor’s note: In the wake of the ruling against former Lebanese minister Michel Samaha, Minister of Justice Ashraf Rifi and a number of others from the Lebanese March 14 Alliance called for the abolishment of the military court or the curtailment of its powers. While The Legal Agenda welcomes this demand, it sees fit to clarify that it does so for purely legal reasons, the foremost relating to the conditions of a fair trial. In this article, The Legal Agenda’s Myriam Mehanna, a legal expert, sheds light on the manner in which the existence of this court and its procedural principles violates these conditions.

The military judiciary occupies an important place in the Lebanese judicial system. Despite its exceptional status, it has very broad powers to prosecute a large number of crimes. Hence, the extent to which it conforms to the conditions of a fair trial and the guarantees related to them must be examined. The conditions of a fair trial can be divided into two categories. The first relates to the right to a competent, independent, and impartial court. The second relates to the specific legal procedures that these conditions impose (i.e., a ‘fair trial’ in the narrow sense of the term).

The Right to an Independent Judiciary

The Military Court’s Jurisdiction and the Principle of the Natural Judge

The military court violates the principle of the ‘natural judge’, a fundamental condition of judicial independence. This principle is itself based on the dual principle of equality before the law and equality before the courts, which holds that litigants have a right to be tried in an equal manner before the same courts, and pursuant to the same procedural rules and legal provisions. A person may only be tried in an ordinary, pre-established court that has the jurisdiction to examine their case.[1] In this sense, the military judiciary is an exceptional judiciary as the military court’s jurisdiction in a given case is determined by the specific quality of the crime, and by a personal criterion, namely whether or not one of the litigants is a member of the military.[2] In such cases, it has absolute jurisdiction and follows special procedural principles. This means that litigants in cases of similar ordinary crimes are separated according to the military, or civilian status of the accused or the victim. More generally, the exceptional nature of a court that is established for a specific group (military personnel) and made up of personnel belonging to that group, inherently undermines the trust that litigants who do not belong to that group (i.e., civilians) have in its independence and impartiality.[3]

The Military Court’s Composition and the Principle of Judicial Independence and Impartiality

On the one hand, the composition of the military court violates the principle of judicial independence.

The military judiciary’s Court of Cassation consists of two benches, each presided over by a judicial judge. On the bench that examines felonies, the president is joined by four officers; whereas, on the bench that examines misdemeanors, the president is joined by two officers.

The permanent military court is presided over by an officer ranked colonel, or above. In felony cases, the president is joined by four other members, only one of whom is a judicial judge; the other three are officers ranked lower than the president. In misdemeanor cases, the president is joined by two members, one a judicial judge and the other an officer ranked lower than the president.

The law allows officers licensed in law to be appointed as single military judges. If that is infeasible, it allows unlicensed officers to be appointed to this position.

Officers licensed in law may also be appointed as assistants of the government commissioner to the military court, as long as they are ranked captain or above (article 11 of the Code of Military Justice).

A military officer licensed in law may also conduct preliminary investigations (article 12 of the Code of Military Justice); this poses a threat to the freedoms and rights of the person subjected to investigation, especially their right to defense.

From the aforementioned details, it is evident that the military presence dominates over the modest presence of judicial judges on multiple levels of the military judiciary’s work. This, of course, poses a grave threat to personal freedoms and fair trial guarantees, especially the right of defense[4] and the independence of the judiciary.

On the other hand, the public prosecution of certain crimes[5] is contingent on a decision made by the military leadership. The military leadership’s decision is binding on the government’s commissioner to the military court (namely a judicial judge who acts as the public prosecutor in this court). This infringes on the function of the commissioner and strips them of their power to and independence in commencing an action. Hence, it is a dangerous breach of the principle of the separation of powers and judicial independence.

Furthermore, the minister of defense is in charge of appointing the military judges at the beginning of each year. The minister’s decision is based on the military and security service authorities’ recommendation regarding their officers. Similarly, during their tenure as presidents or members of military courts, military personnel remain directly subordinate to the minister of defense, and are subject to the regulations of the corps to which they belong. Hence, judges are closely connected to the executive authority, and the military service.

This close connection casts strong doubts over the military court’s independence and impartiality. Independence and impartiality are measured with reference to not only personal factors (i.e., the judge’s prejudices and personal interests in a case), but also impersonal factors (i.e., the court’s apparent impartiality). For a court to have the appearance of impartiality, it must provide the appropriate objective guarantees to dispel any legitimate doubt over its impartiality. Jurisprudence issued by the European Court of Human Rights[6] has enshrined the principle of the appearance of independence, such that the mere existence of reasons for one party to legitimately doubt the independence or impartiality of the judge is enough to violate the principle.[7] Of course, the military’s domination over the composition of these courts is an objective reason to doubt their impartiality and independence.

Additionally, the members of the permanent military court are officers ranked lower than the court’s head. This casts further doubt over the independence of those members. How can an officer ranked lower than the court’s president, in a military body known for its hierarchy and culture of obedience, contradict the latter’s opinion?

Guarantees of Fair Trial

The Right of Personal Action and the Principle of Adversariality

Injured parties (i.e., victims) are not entitled to institute personal actions before the military judiciary as its jurisdiction is restricted to public prosecution. Parties injured by crimes that fall within the jurisdiction of the military court are only entitled to resort to the civilian judiciary to seek damages. Hence, they are unable to trigger or be represented in public prosecutions [a usual consequence of instituting personal actions in civilian courts]. One grave consequence of this is that victims must await the result of public prosecutions in the military court before seeking damages before the civilian court. Victims are also bound by the outcome of military trials even though they cannot plead their case and provide conclusive evidence of the crimes in those trials. This violates the key legal principle that a person may not be bound by a judicial ruling if they were not a party in the trial that produced it. It also undermines the core tenet of adversarial trials: the right of each party to confront the other party with its evidence. This tenet is enshrined, for example, in the article 13-3 of the International Covenant on Civil and Political Rights.

This issue is closely related to the problem of the military court’s jurisdiction. While some people believe that the Military Justice Code should be amended to enable victims to institute personal actions before it, such an amendment would itself poses a serious danger as it would in effect legitimize the military judiciary and expand its power.

The Right to a Defense

A number of provisions in the Military Justice Code violate the right to defend, one of the most important requirements of a fair trial. For example, the Military Justice Code allows officers to be appointed to defend people referred to the military courts. In these cases, the lawyer-officers’ lack of independence from the military, and their inexperience in legal and judicial matters (especially given that being licensed in law is only a preferred attribute of these officers, not a binding requirement), seriously threatens defense rights. Similarly, lawyers are given the insufficient period of just 24 hours to view the case file.

Moreover, the court’s president may “ban the lawyer from entering the military court for a period of up to three months if he commits a serious misconduct before the trial or during its hearings”. This power gravely threatens the rights of defense. Granting the court’s president disciplinary power that violates the exclusivity of the role played by the Bar Association also threatens the legal profession and the immunities vested in it. Making matters worse, the court’s president is entitled to absolute discretion, while the lawyers have no right to defend themselves.

Restricting the Right to Litigate on Two Levels

The right to two levels of litigation is being violated by the investigations judiciary as there is no authority to which decisions made by the military investigating judge can be appealed. This, of course, threatens a number of guarantees enshrined in the Code of Criminal Procedure, such as the right to receive a medical examination.

The Absence of Explanations for Rulings

Article 63 of the Code of Military Justice and those that follow it regulate the deliberation that military judges undertake, and the questions they consider before issuing a ruling. Accordingly, the deliberation between judges occurs on the basis of yes/no questions, and sentences are determined by consensus or majority.

Article 70 of the same code stipulates the mandatory information that a ruling must include in order to be valid. The military judiciary appears to be exempt from the obligation to explain its rulings as, according to the article, it is sufficient for the ruling to include “the questions raised and the decisions taken, by consensus or majority, in relation to them” and “the sentences handed down and the legal articles that were applied, although there is no need to record their text”.

The obligation to explain judicial rulings is actually one of the safeguards that ensure a judge’s independence. This is because it deters arbitrariness on the part of the judge by forcing him to fully comprehend his legal opinion, and its impact. It also provides the litigants with a justification for the ruling.[8]

This article is an edited translation from Arabic.

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[1] See article 5 of the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan in 1985.

[2] Articles 24 and 27 of the Code of Military Justice, No. 24/68.

[3] V. CEDH 9 June, 1998, Incal c/ Turquie, req. no 22678/93, Rec. 1998-IV, § 72.

[4] V. CEDH 14 March 2000, Jordan, Stephen c/Royaume Uni, Bulletin d’information sur les droits de l’homme, Conseil de l’Europe, no 53 mars-juin 2001 p. 20.

[5] These crimes are:

1. Those committed by a member of the military against another member;

2. Those involving a member of the military but not involving a civilian;

3. Those involving a civilian and a member of the military and perpetrated during or due to active service; and

4. Those involving a member of the military and stipulated in the second chapter of the third volume of the Code of Military Justice.

[6] CEDH 1 oct. 1982, Piersack c/ Belgique, série A, no 53, § 30.

[7] CEDH 26 féb. 1993, Padovani c/ Italie, Séries A 257-B, § 25.

[8] S. Guinchard, Droit processuel, Droit commun et droit comparé du procès, Dalloz 2005, 3e éd., p. 773.

Sources:

1. Doreid Becheraoui, “Principles of Criminal Trials: A Comparative Study, Volume 2, The Criminal Judiciary”, SADER Publishers, 2005, p. 361 onwards.

2. Ibrahim Ali al-Hariri, The Code of Military Justice in Lebanon: Exposition and Analysis, Beirut, 1998.
3. Bashara Haykal al-Khouri, “The Military Court and its Characteristics”, SADER Publishers, 2005.