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11 травня 2005

Військове судочинство: порівняльний аналіз військової та загальної юрисдикцій у світі

Vitaliy Razik

 Military Justice:

Comparative Analysis of Civil Versus Military Jurisdiction over Court Proceedings

 

Construction of a military justice system is challenging in all countries of the world. In this paper are discusses differences in military courts system, appeal procedure and new international requirements for such a procedure.

Military justice can be defined as “a structure of punitive measures designed to foster order, morale, and discipline within the military.”[1] Also, it is possible to say that military justice is a system of special organs and courts looking for cases in military organizations in war or peace time. All characteristics of such a structure depend very much on country’s system of laws and legal tradition in the military jurisdiction.

The roots of the military courts run deep. They predate written military codes designed to bring order and discipline to an armed. Some form of enforcement of discipline has always been a part of any military system. In the Roman armies, justice was normally dispensed by the magistri militum or by the legionary tribunes who acted either as sole judge or with the assistance of the councils. The Roman model was employed or observed by the later continental armies and is credited by the most commentators as the temple for later military code.

Military justice is going through a period of foundation with big changes as in side of military and in side of civilian hierarchy. In country after country, dramatic changes have happened since the years just after World War II. Examples of the changes include the enactment of major reforms in United Kingdom, hastened by a series of cases in the European Court of Human Rights, and in Canada, where decisions of the Supreme Court and Court Martial Appeal Court have played a major role.

Nowadays, there are different approaches within countries to decide how the system must work to achieve proper results in combat situations and the same time to maintain the standards of human rights protection are maintained. Some countries military courts that work in military troops do not depend on civilian jurisdiction.  Some countries try to changes such a complicated system and have mixed system. To do so, they abrogate the separate military courts; instead, the military division is incorporated into the original system of justice and depends on the Supreme Court of the state. Military courts have jurisdiction over troops that serve abroad. Some other countries abandon the military courts system in peaceful time and use the civil system of courts. However, the similarity among all the countries is that they all decided to have independent military courts in the time of war.

Military system is quite good in the time of war, because military courts and military prosecutors are always with the troops, which may be on a move. This system is addressing discipline and criminal matters. In time of peace this system can be also useful and many counties which have big armies and military doctrines with requirements of military actions against others can use this system. As soon as current situation changes quickly, mobile military troops are not numerous, and countries have well developed military-criminal legislation, they do not need an additional mechanism of military courts in peaceful time.

For example some countries (Austria, Germany and Japan) have abolished military courts in peacetime; wrongdoing is punished through the use of disciplinary or administrative courts, with action sometimes also being taken simultaneously in the ordinary criminal courts. In fact, during the 1980s and 1990s, military courts in peacetime were abolished in many countries, such as, Denmark, Slovenia, Estonia, France, the Netherlands, and the Czech Republic. Other countries (Finland and Hungary) have reformed their military courts either through strengthening the role of civilian judges or bringing their procedures into line with the rules of procedure used in ordinary courts. In many countries, such as Canada and the United Kingdom, reforms have been introduced to ensure that judicial guarantees of European Convention on Human Rights are afforded to military personnel facing trial in military courts. In other countries, such as Ireland, similar reforms are on the way. The Irish authorities have embarked on a comprehensive reform of the system of military justice and have announced that one of the purposes of the reform is to incorporate the provisions of the European Convention on Human Rights.

One of the main purposes why some countries change military system is to impose the decision of European Court of Human Rights. In order to conform to the standards of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights, the military justice system should seek to minimize disparities between the treatment of accorded members of the armed forces and other citizens.

The European Convention for the Protection of Human Rights and Fundamental Freedoms does not contain any specific provisions regarding military courts. Nevertheless, matters relating to the right of a fair trial are dealt with in article 6. The European Court of Human Rights does not consider whether military courts lack impartiality or independence per se.

On the matter of military justice the European Court of Human Rights ruled (case Incal v. Turkey) that “the presence of a military judge in the State Security Court was contrary to the principles of independence and impartiality, which are essential prerequisites for a fair trial”. In the case Findlay v. the United Kingdom, the Court considered that the court martial that had tried the applicant had been neither independent nor impartial because its members had been subordinate to the officer who served as the prosecuting authority and the sentence could be altered by that officer. Following that judgment, the United Kingdom amended its legislation on that subject to change such misappropriate system.

Also, special requirement to military justice and possibility to appeal decision of such courts can be found at the United Nation document on dispensation of the justice by military tribunal. On that document UN Commission on Human Rights cautions about possibility to prosecute civilians by military courts: “There is a growing consensus on the need to limit the role of military jurisdictions, or even abolish them. In this regard, the following positions should be considered. The Special Rapporteur on the independence of judges and lawyers considered that, “in regard to the use of military tribunals to try civilians, international law is developing a consensus as to the need to restrict drastically, or even prohibit, that practice.” [2] Council of Europe also is quite cautious about justice in military courts.[3]

As result of such international impositions in resent years the administration of justice by military tribunals is being gradually “demilitarized”. This is taking the form of increasing restrictions on the jurisdiction of such tribunals and changes in their composition. The most frequently encountered stages in this process are successively:

Inclusion of judges in the composition of military jurisdictions;

Increasing use of civilian lawyers;

Transfer of appeals to the ordinary courts, particularly appeals regarding legality, which is increasingly ensured by the ordinary courts;

Abolition of military courts in peacetime;

Increasing limitation of trials, by military tribunals, of members of the armed forces accused of serious human rights violations, particularly when such violations constitute serious crimes under international law.

Many factors have to be taken into account to classily different system, as i.e. factors related to jurisdiction (ratione personae, materiae and tempore), composition and operation, position within the state structure, relationship with the judiciary, sources of law, etc., therefore it is difficult to come up with a model for classifying military justice system. Military courts are extremely diverse and heterogeneous yet features from several of the models are present in every national system. For this purpose, any classification cannot describe fully all differences between military justice organizations among the countries. Also, some countries are now in moving from one system to other. For the purpose of overall understanding differences, it is possible to classify such systems in the following table, which  captures the basic differences among countries in the discussed area.

 

Type of system

Group of countries

Characteristics

Appeal process

Military courts system

The United Kingdom, Denmark, Spain, Italy, Canada, China, Poland, Romania, the USA,  Switzerland, Russia and most of post-soviet republics and Latin America countries

Military courts exist not only in war time, but also during the peace. In these countries military justice constitutes an important element of courts system. Such courts consist of military officers and have separate system of courts up to the division in Supreme Court.

Appeal is possible and depends on type of the case and only in higher military courts. The highest court is Supreme military court or military division on Supreme Court.

Mixed system

France, the Netherlands, Hungary, Bulgaria

Instead of military courts, special military structure functions in common court structure, which consists of military lawyers; sometimes it also includes an original judge or has a mixed personal. Also military court may function with military troops outside the border.

Possible to appeal decision of military courts to highest military court or to Supreme Court, which has power to hearing such cases.

Not military system

Germany, Austria, Portugal, Sweden, and Japan

Military criminal court is set only for war time.

In peaceful time criminal cases of military personal are heard by common courts. Meanwhile in such countries it is possible to organize military discipline courts. Those countries do not even have courts what can process the hearing cases on military troops outside the territory.

In those countries more attention takes development of military criminal law and procedure.

Ordinary criminal procedure and possibility to appeal as in the regular cases.

 

Appeal procedures in the three systems are also quite different. For example, appeal procedure in the USA is used, if there is an approved sentence which includes a sentence of death, a punitive discharge (Dishonorable Discharge or Bad Conduct Discharge for enlisted personnel; Dismissal for officers), or confinement for one year or more. In the latter situation, the Courts of Criminal Appeals of the accuser’s branch of service will automatically review the case. The accused can waive this automatic review in all cases, except death penalty cases. If an accused waives his appellate rights, he/she will still have his/her case reviewed by the service Judge Advocate General for legal errors and possible referral to the appellate courts.

Each military service has an established Court of Criminal Appeals which is composed of one or more panels, and each panel has no less than three appellate military judges. To review court-martial cases, the court may sit in panels or as a whole. The court, sitting as a whole, may reconsider any decision of a panel. Appellate military judges who are assigned to a Court of Criminal Appeals may be commissioned officers or civilians, each of whom must be a licensed attorney.

United States Court of Appeals for the Armed Forces consist of five civilian judges, appointed by the President and confirmed by Congress, comprise the Court of Appeals for the Armed Forces (CAAF) and serve for a term of 15 years. CAAF is responsible for overseeing the military justice system. In all but death penalty cases, which it reviews automatically, and cases certified by the Judge Advocate General, CAAF chooses upon petitions for review which cases it will consider, similar to Federal courts of appeal. Military members convicted of crimes may petition the U.S. Supreme Court for a review of their case. Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari. However, the Supreme Court may not review a decision by the Court of Appeals for the Armed Forces which had refused to grant a petition for review. The military accused has a right, without cost, to the services of a military appellate defense counsel at all appellate review levels, including review by the Supreme Court.

In Canada the National Defence Act establishes a Court Martial Appeal Court of Canada (C.M.A.C.) as a superior court of record and provides for the chief justice of the court to make rules for the court. A person who is subject to the Code of Service Discipline can appeal from a court martial to the C.M.A.C. on the legality of any finding of guilty, the legality of the sentence. With the permission of the C.M.A.C., a convicted person can appeal the severity of the sentence. Several provisions govern the disposition of appeals by the C.M.A.C. For example, on an appeal by a convicted person about the legality of a finding of guilty, the C.M.A.C. can dismiss the appeal, allow the appeal and enter a finding of not guilty, or order a new trial. On an appeal by the minister from a finding by any court martial of not guilty, the C.M.A.C. can dismiss or allow the appeal. If it allows the appeal, the court can set aside the finding and direct a new trial.

The National Defence Act provides for appeals to the Supreme Court of Canada by a person convicted at a trial by court martial whose appeal has been dismissed by the C.M.A.C. The appeal is as of right if it is on a question of law and there is a dissenting opinion on that question of law in the C.M.A.C. Even if there is no dissenting opinion, the Supreme Court may grant permission to the person to appeal the question of law. Where the C.M.A.C. has wholly or partially allowed an appeal by a person, the minister of national defence can, as of right, appeal any question of law to the Supreme Court of Canada if there is a dissenting opinion by a judge of the C.M.A.C. on that question; if there was no dissenting opinion, the Supreme Court of Canada may grant the minister permission to appeal on a question of law.

The similar to the aforementioned systems of military appeal exists in the other countries in the first group.

The second group consists of countries which are changing now their appeal procedure, thus moving to the third group and establishing the appeal procedure within the originally justice system. Third group, of course, use only civil system in appeal procedure.

Also in the context of legislation regulations is interesting how countries regulate administration of military justice in their constitutions. Virtually all countries of the world which have written constitutional legislation use those constitutions or constitutional laws to regulate the ordinary legal system. Nevertheless, that is not the case for military jurisdiction and many countries with military courts do not regulate military jurisdiction in their constitutional legislation. So, for example, even though their legal systems provide for military courts, the Constitutions of Slovakia, Hungary, Lithuania and Romania contain no clauses on the question of military justice. Other countries have clauses on military jurisdiction in their constitutions. These can vary in their scope. Some simply defer to the law. For example, article 94 of the 1868 Constitution of the Grand Duchy of Luxembourg defers to the law to regulate matters related to military courts. In the Netherlands, military jurisdiction has not been regulated in the Constitution since 1887. The last Constitution, which was adopted in 1983 and is still in force today, simply states that criminal law in wartime shall be regulated by law. Although military jurisdiction was abolished in 1982 and replaced by military divisions within the ordinary court system, prior to that the Netherlands had operated a form of ‘military justice’ which came under frequent criticism.

A significant number of States have military jurisdiction established in their constitutions, together with regulations relating to their composition, operation and powers. The scope of such regulations varies from country to country. Some allow military courts to have extensive powers. For example, the Irish Constitution of 1937 gives military courts broad-ranging jurisdiction. Article 38 stipulates that military tribunals can be established “for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion”. The Constitution of the Federal Republic of Brazil probably has more articles on military jurisdiction than any other. For example, article 92 states that “the military tribunals and judges are part of the judiciary”. Article 24 of the Constitution gives a general definition of the scope of Brazilian military criminal jurisdiction: “It is the responsibility of the military justice system to try and judge military crimes defined as such in law”. The Constitution also stipulates that military criminal jurisdiction encompasses offences committed both in peacetime and wartime.

To conclude, the construction of the national systems in the sphere of military justice is challenging in all countries of the world. Some countries are moving from military type of justice to usage of ordinary courts system.



[1] Black Law Dictionary – Eighth edition, at p. 1013

[2] United Nation, Commission on Human Rights, Dispensation of Justice: question on dispensation of the justice by military tribunal. E/CN.4/Sub.2/2002/4, 9 July 2002

[3] Justice in Military Courts, Permanent Committee on Human Rights, Strasbourg, 16 June 2003. Council of Europe CDDH, (2003)015 Attachment III