Everyone whose rights are affected or who is accused of any wrongdoing has the right to legal recourse. Such recourse is only useful if the quality of the administration of justice meets minimum requirements. In this respect the International Covenant on Civil and Political Rights and the American Convention on Human Righs clearly require: ‘a competent, independent and impartial tribunal’. The right to an independent and impartial tribunal established by law contains both objective and subjective elements. The objective requirements are mainly institutional, demanding the separation of powers within the constitutional structure of the country. The subjective element requires that any semblance of dependence must be avoided by the (members of the) tribunal. They should avoid any act, attitude or comment which may lead to doubts among litigants as to the independence of the tribunal. Such avoidance is also part of the necessary impartiality of the judiciary.
The separation of the executive and the judicial branches of government is particularly important in securing the basis for the independence of the judiciary. Clearly, the independent and impartial position of judges is the crucial point: if the government or other authorities can remove judges at will, their institutional independence is not secured. Furthermore, if the courts or the judges are under the control or influence of non-judicial entities, their independence and impartiality may be impaired. Such control may be exercised through conditions of payment of judges, the possibility for other branches of government to issue instructions to courts, or threats of transfers of judges to other posts should their decisions not conform to expectations or instructions.
Independence of the judiciary
Many authorities and NGOs, such as the International Commission of Jurists, consider independence of the judiciary as the most important component of an effective court. Without independence, the recourse to a court is of limited value. The problems linked with the independence of judges vary in different parts of the world, ranging from salary bargaining schemes to judges being threatened physically. Independence has been the subject of many debates. One relevant instrument in this context is Basic Principles on the Independence of the Judiciary, as adopted by the seventh UN Congress on the prevention of Crime and the Treatment of Offenders on 6 September 1985 and endorsed by the UNGA in Resolution 40/146 on 13 December 1985.
In the case below, Oló Bahamonde complained about the impossibility of seeking redress for unjustified detention and the confiscation of some of his land. He maintained that the judiciary was controlled by the president of the country.
Oló Bahamonde v. Equatorial Guinea
Human Rights Committee
Communication No. 468/1991
Views of 20 October 1993
Keywords: fair trial - independence of the judiciary
[?]
Facts
1. The author of the communication is Angel N. Oló Bahamonde, a citizen of Equatorial Guinea born in 1944 and a landowner, mining engineer and former civil servant. [?]
2.1 On 4 March 1986, the author’s passport was confiscated at the airport of Malabo; on 26 March 1986, the same thing occurred at the airport of Libreville, Gabon, allegedly upon orders of President Obiang of Equatorial Guinea. From 26 May to 17 June 1987, the author was detained by order of the Governor of Bioko. Some of his lands were confiscated in October 1987. The author complained to the authorities and directly to President Obiang, to no avail. A little later, some 22.2 tons of cacao from his plantations were confiscated by order of the Prime Minister, and his objections and recourse of 28 February 1988 were simply ignored. Part of his agricultural crops allegedly were destroyed by the military in 1990-1991. Once again, his requests for compensation were not acted upon.
2.2 On 16 January 1991, the author was granted a personal audience with President Obiang. In its course, the author outlined his grievances and handed to Mr. Obiang a copy of the entire written record in the case, including copies of the complaints addressed to the President. The damage allegedly suffered included the expropriation of several of his farms by virtue of decree No. 125/1990 of 13 November 1990, the destruction of maize and soja crops worth more than 5 million CFA francs, and the exploitation of timberland in the order of approximately 5 million CFA francs. Finally, industrial development and oil exploration projects prepared by him for the Government and valued at approximately 835 million CFA francs have been used by the authorities without any payment to the author.
2.3 According to the author, there are no effective domestic remedies to exhaust or even pursue, as President Obiang controls the State party’s judiciary at all levels of the administration.
The complaint
3.1 The author complains that he and other individuals who do not share the views or adhere to the ruling party of President Obiang or who do not at least belong to his clan [?] are subjected to varying degrees of discrimination, intimidation and persecution. [?]
3.2 The author asserts that his arrest in May-June 1987 was arbitrary, and that no indictment was served on him throughout the period of his detention. During this period, he was not brought before a judge or judicial officer.
3.3 It is further submitted that the author has been prevented from travelling freely within his own country and from leaving it at his own free will. [?]
The Committee’s decision on admissibility
6.1 During its forty-fourth session, in March 1992, the Committee considered the admissibility of the communication. [?]
Taking into consideration the State party’s failure to link its observations to the specific circumstances of the author’s case, and bearing in mind that he had submitted very comprehensive information in support of his contention that he sought to avail himself of remedies under the laws of the State party, the Committee was satisfied that he had met the requirements of article 5, paragraph 2 (b), of the Optional Protocol.
6.2 As to the allegations under articles 16; 17; 19; 20, paragraph 2; 25; and 27, the Committee considered that the author had failed to substantiate them for purposes of admissibility. Similarly, it noted that he had failed to adduce sufficient evidence in support of his claim under article 6, paragraph 1, and concluded that in this respect, he had failed to advance a claim within the meaning of article 2 of the Optional Protocol.
6.3 On 25 March 1992, the Committee declared the communication admissible in so far as it appeared to raise issues under articles 9, paragraphs 1 and 3; 12, paragraphs 1 and 2; 14, paragraph 1; and 26 of the Covenant. [?]
Examination of the merits
8.1 The Committee has taken note of the State party’s observations, which reject the author’s allegations in summary terms and invite the Committee to ascertain in situ that there have been no violations of the Covenant.
8.2 As to the State party’s suggestion that the Committee should investigate the author’s allegations in Equatorial Guinea, the Committee recalls that pursuant to article 5, paragraph 1, of the Optional Protocol, it considers communications “on the basis of all written information made available to it by the individual and by the State party concerned”. The Committee has no choice but to confine itself to formulating its views in the present case on the basis of the written information received. Article 4, paragraph 2, of the Optional Protocol enjoins a State party to investigate thoroughly, in good faith and within the imparted deadlines, all the allegations of violations of the Covenant made against it, and to make available to the Committee in written form all the information at its disposal. This the State party has failed to do; in particular, it has not addressed the substance of the author’s claims under articles 9, 12, 14 or 26, the provisions in respect of which the communication had been declared admissible. Rather, it simply rejected them in general terms as unfounded. Accordingly, due weight must be given to the author’s allegations, to the extent that they have been substantiated.
9.1 With respect to the author’s allegation that he was arbitrarily arrested and detained between 26 May and 17 June 1986, the Committee notes that the State party has not contested this claim and merely indicated that the author could have availed himself of judicial remedies. In the circumstances, the Committee considers that the author has substantiated his claim and concludes that he was subjected to arbitrary arrest and detention, in violation of article 9, paragraph 1. It further concludes that as the author was not brought promptly before a judge or other officer authorised by law to exercise judicial power, the State party has failed to comply with its obligations under article 9, paragraph 3.
9.2 With regard to the author’s claim that he was subjected to harassment, intimidation and threats by prominent politicians and their respective services on a number of occasions, the Committee observes that the State party has dismissed the claim in general terms, without addressing the author’s well- substantiated allegations against several members of the Government of President Obiang Nguema. The first sentence of article 9, paragraph 1, guarantees to everyone the right to liberty and security of person. The Committee has already had the opportunity to explain that this right may be invoked not only in the context of arrest and detention, and that an interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render ineffective the guarantees of the Covenant. a/ In the circumstances of the case, the Committee concludes that the State party has failed to ensure Mr. Oló Bahamonde’s right to security of person, in violation of article 9, paragraph 1.
9.3 The author has claimed, and the State party has not denied, that his passport was confiscated on two occasions in March 1986, and that he was denied the right to leave his country of his own free will. This, in the Committee’s opinion, amounts to a violation of article 12, paragraphs 1 and 2, of the Covenant.
9.4 The author has contended that despite several attempts to obtain judicial redress before the courts of Equatorial Guinea, all of his démarcheshave been unsuccessful. This claim has been refuted summarily by the State party, which argued that the author could have invoked specific legislation before the courts, without however linking its argument to the circumstances of the case. The Committee observes that the notion of equality before the courts and tribunals encompasses the very access to the courts, and that a situation in which an individual’s attempts to seize the competent jurisdictions of his/her grievances are systematically frustrated runs counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also noted the author’s contention that the President of the State party controls the judiciary in Equatorial Guinea. The Committee considers that a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent and impartial tribunal within the meaning of article 14, paragraph 1, of the Covenant.
9.5 Finally, on the basis of the information before it, the Committee concludes that Mr. Oló Bahamonde has been discriminated against because of his political opinions and his open criticism of, and opposition to, the Government and the ruling political party, in violation of article 26 of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal violations of articles 9, paragraphs 1 and 3; 12, paragraphs 1 and 2; 14, paragraph 1; and 26 of the Covenant.
11. Pursuant to article 2 of the Covenant, the State party is under an obligation to provide Mr. Oló Bahamonde with an appropriate remedy. The Committee urges the State party to guarantee the security of his person, to return confiscated property to him or to grant him appropriate compensation, and that the discrimination to which he has been subjected be remedied without delay.
12. The Committee would wish to receive information, within 90 days, on any measures taken by the State party in respect of the Committee’s views.
Comment
In a case such as Oló Bahamonde v. Equatorial Guinea, it is quite common that once the independence of the judiciary is impaired several other elements in terms of fair trial are interfered with. As we can read in this case, the judiciary does not provide any protection against expropriation, arbitrary arrest or discrimination.
In Campbell and Fell v. The United Kingdom(Application No. 8342/95, Judgement of 28 June 1984), the European Court stated the following on independence:
78. In determining whether a body can be considered to be “independent” - notably of the executive and of the parties to the case (see, inter alia, the Le Compte, Van Leuven and De Meyere judgement of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court has had regard to the manner of appointment of its members and the duration of their term of office (ibid., pp. 24-25, para. 57), the existence of guarantees against outside pressures (see the Piersack judgement of 1 October 1982, Series A no. 53, p. 13, para. 27) and the question whether the body presents an appearance of independence (see the Delcourt judgement of 17 January 1970, Series A no. 11, p. 17, para. 31).
Subjective perceptions of litigants were also the issue in Kraska v. Switzerland (Application No. 13942/88, Judgement of 19 April 1993) albeit in a slightly different context. In this case, the applicant had appealed against a decision to revoke his licence to practise medicine. At the appellate level, one of the judges stated publicly that he had not had time to read through the entire appellate brief, but he nevertheless participated in the decision against the applicant. The European Court of Human Rights stressed the importance of appearances to the proper administration of justice, but held that the circumstances of the particular case did not support the applicant’s claim of unfairness, which had to be justified on objective as well as subjective grounds. As the judge whose conduct was at issue had been briefed by the court’s rapporteur and had played an active part in the hearing and the deliberations, there was no violation of Article 6(1).
Selected additional cases: ECHR : Campbell and Fell v. The United Kingdom,Application No. 7819/77, Judgement of 28 June 1984. HRC: Fei v. Colombia , Communication No. 514/192, Views of 4 April 1995
Impartiality of the judiciary
Impartiality and independence are closely linked. The requirement of a competent, independent and impartial court applies to all courts and tribunals within the scope of the relevant articles on fair trial. Virtually all states have both ordinary and special courts such as commercial courts, petty courts, land- or tenancy courts, courts dealing with traffic offences or military courts. One reason for the establishment of such courts may be a higher degree of efficiency in dealing with repetitious cases, a better understanding of complex cases or to enable the application of exceptional procedures, falling outside the normal penal or commercial process law.
International human rights law allows special courts, but maintains the general requirements in terms of competence, independence and impartiality with regard to these courts. Unfortunately, in the case of military courts these requirements are not always met.
In the case below, a member of the United Kingdom Navy was convicted of unlawfully and maliciously wounding with intent to do grievous bodily harm by a naval court-martial. He was sentenced to inter alia, three years imprisonment and dismissal from the service. He applied to the European Court claiming that the court-martial was not independent.
Grieves v. The United Kingdom
European Court of Human Rights
Application No. 57067/00
Judgement of 16 December 2003
Keywords: impartiality - fair trial - special court
[?]
THE LAW
65. The applicant complained under Article 6§ 1 of the Convention that his court-martial, structured as it was under the 1996 Act, lacked independence and impartiality and that the proceedings before it were consequently unfair. Article 6§ 1, in so far as relevant, reads as follows:
“1. In the determination ? of any criminal charge against him, everyone is entitled to a fair ? hearing ? by an independent and impartial tribunal ?.”
I. ADMISSIBILITY OF THE COMPLAINT
66. Other than arguing that the complaint was manifestly ill-founded, the Government did not raise any other objection to its admissibility.
67. It is not disputed that the final decision in the proceedings was that of the CMAC [Courts Martial Appeal Court] of 20 January 2000. The complaint was introduced on 26 April 2000 and, therefore, within the six-month time-limit set down by Article 34 of the Convention. Moreover, the Court considers that, given the nature of the charge (unlawfully and maliciously wounding with intent to do grievous bodily harm contrary to the Offences Against the Person Act 1861) together with the nature and severity of the penalty imposed (three years’ imprisonment), the court-martial proceedings constituted the determination of a criminal charge against the applicant (Engel and Others v. the Netherlands judgement of 8 June 1976, Series A no. 22, § 82-83 and, more recently,Ezeh and Connors v. the United Kingdom [GC], Nos. 39665/98 and 40086/98, § 69-130, ECHR- ..).
68.The Court considers that the applicant’s complaint raises questions of law which are sufficiently serious that its determination should depend on an examination of the merits and no other grounds for declaring it inadmissible have been established. The Court therefore declares the complaint admissible. In accordance with its decision to apply Article 29§ 3 of the Convention (see paragraphs 6 and 9 above), the Court will immediately consider the merits of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 6§ 1 OF THE CONVENTION
A. The relevant case-law
69. The Court recalls that in order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.
In this latter respect, the Court also recalls that what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (Findlay v. the UK, judgement of 25 February 1997, Reports of Judgements and Decisions 1997-I,§73 / Incal v. Turkey, judgement of 9 June 1998, Reports 1998-IV,§ 71).
It is further recalled that there are two aspects to the question of “impartiality”: the tribunal must be subjectively free of personal prejudice or bias and must also be impartial from an objective viewpoint in that it must offer sufficient guarantees to exclude any legitimate doubt in this respect (the above-cited Findlay judgement, at§ 73). The Court notes that the present applicant did not suggest that anyone involved in his court-martial process was subjectively biased against him.
Since the concepts of independence and objective impartiality are closely linked, the Court will consider them together in the present case (also at§ 73 of the Findlay judgement).
70. In the case of Cooper v. the United Kingdom, in which judgement has been delivered on the same date as the present, the applicant also complained under Article 6§ 1 of the Convention that his air-force court-martial, structured as it was under the 1996 Act, lacked independence and impartiality and that the proceedings before it were consequently unfair.
71. The Court rejected his general submission that service tribunals could not, by definition, try criminal charges against service personnel consistently with the independence and impartiality requirements of Article 6§ 1 of the Convention (the Cooper judgement, at § 108-110).
72. The Court also rejected his complaint that his own court-martial lacked independence and impartiality (the Cooper judgement, at § 111-134). It found that his submissions concerning the Higher Authority, the Prosecuting Authority and the Court Administration Officer (“CAO”) did not cast any doubt on the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process. It further considered that there was no reason to doubt the independence of the decision-making of those bodies from chain of command, rank or other service influence (the Cooper judgement,§ 115).
As to the Judge Advocate, the Court concluded that there was no ground upon which to question the independence of the air-force Judge Advocate since he was a civilian appointed to the staff of the JAG by the Lord Chancellor (a civilian) and to a court-martial by the JAG (also a civilian). It was also found that the presence of a civilian with such qualifications and such a central role in court-martial proceedings constituted “one of the most significant guarantees” of the independence of those proceedings (the Cooper judgement,§ 117). As to the Permanent President of courts-martial (“PPCM”), the Court not only found the PPCM appointed to the court-martial in the Cooper case to be independent but also that the PPCM constituted an “important contribution” to the independence of an otherwise ad hoc tribunal (the Cooper judgement,§ 118).
Turning then to the ordinary members, the Court found that there was no reason to doubt their independence by reason of the position and role of the CAO or because of the manner in which the CAO appointed them. However, their ad hoc appointment and their relatively junior rank, while not sufficient of themselves to undermine their independence, emphasised the need for the existence of particularly convincing safeguards against outside pressure being brought to bear on those officers. The Court concluded that there were in place sufficient safeguards of the independence of the ordinary members of the court-martial notably the presence of the PPCM and the Judge Advocate, the prohibition reporting on members’ judicial decision-making and the Briefing Notes distributed to the members (the Cooper judgement, § 119-126).
Finally, the Court found that the role of the Reviewing Authority did not undermine the independence of the court-martial because the final decision in the proceedings would lie with a judicial body, the CMAC (ats§ 127-133 of the Cooper judgement).
73. Accordingly, the Court concluded that Mr Cooper’s misgivings about the independence and impartiality of his air-force court-martial, convened under the 1996 Act, had not been objectively justified and that the court-martial proceedings could not consequently be said to have been unfair. It found therefore that there had not been a violation of Article 6§ 1 of the Convention.
B. Application to the present case
74. The present applicant raised the same complaint as in the Cooper case but in relation to a naval court-martial. Naval courts-martial differ in certain important respects from the air-force system examined in the Cooper case and the Court has considered whether those distinctions are such as to lead to a conclusion in the present case different from that in the Cooper judgement.
75. The first distinction concerns the naval Prosecuting Authority: in contrast to the other services, the naval Prosecuting Authority can appoint a prosecutor for a court-martial from a list of uniformed naval barristers outside his own staff. The applicant did not comment specifically on how this bears on the compliance of his court-martial with Article 6 apart from noting that “ad hoc” prosecutors are involved in naval courts-martial. The Government emphasised that the prosecutor for the vast majority of naval courts-martial is, in fact, from the staff of the Prosecuting Authority as was the prosecutor in the applicant’s case (see paragraph 12 above). In any event, they did not consider that the appointment of a prosecutor from outside of that Authority’s staff affected the independence of the court-martial process.
76. The Court considers that the essential point is that the prosecutor in the applicant’s case came from the staff of the Prosecuting Authority, as was the case in court-martial at issue in the Cooper case.
77. Secondly, the NCAO [Naval Court Administrative Officer] (carrying out the same duties as the CAO in the air-force) is a civilian and not a serving officer as in the air force. The applicant did not directly address the point. The Government considered that the fact that the NCAO fell outside of the naval disciplinary chain was a further guarantee of the independence of the naval court-martial process. In any event, just as the air-force CAO operates independently, so too does the NCAO.
78. The Court considers it plain that the involvement of a civilian in a service court-martial process contributes to its independence and impartiality. In any event, the NCAO’s duties and functions are sufficiently similar to those of the air-force CAO as to allow the conclusion that the former operates independently of the Higher and Prosecuting Authorities and of chain of command, rank or other service influence (the Cooper judgement,§ 114-115).
79. Thirdly, there is a single type of naval court-martial whereas the air-force can convene both district and general courts-martial. The parties do not suggest, and the Court does not consider, that the fact that a naval court-martial can only sit in a single formation has any bearing on the independence and impartiality of such tribunals.
80. Fourthly, the post of PPCM does not exist in the naval system, the President of a naval court-martial being appointed for each court-martial as it is convened. The applicant pointed out that, as a result, the entire court-martial was convened on an ad hoc basis. The Government explained that, since there were less naval courts-martial, there was no need for a group of officers with the sole task of acting as PPCMs and considered that the naval court-martial complied with Article 6§ 1 even without PPCMs.
81. The Court considers that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making (the Cooper judgement,§ 118) deprives naval courts-martial of what was considered, in the air-force context, to be an important contribution to the independence of an otherwise ad hoc tribunal.
82. Fifthly, and most importantly, the Judge Advocate in a naval court-martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. In contrast, the Judge Advocate in the air-force is a civilian working full-time on the staff of the Judge Advocate General, himself a civilian.
83. The applicant considered this distinction sufficient of itself to conclude as to the lack of independence of naval courts-martial. He maintained that it was inevitable that the JAF’s comments on the Judge Advocate’s conduct of the court-martial would be taken into account in the wider service evaluation of that officer for promotion. Whether or not there was at the time a regulation excluding reporting in the service on a Judge Advocate’s judicial decision-making, he submitted that it was unreal to consider that the service would genuinely separate his judicial and other service functions. The CNJA [Chief Naval Judge Advocate], who appointed the Judge Advocate, is a service appointment. The JAF [Judge Advocate of the Fleet] is not responsible for the appointment of the Judge Advocate, has no input into the court-martial itself and his essential task is to report on the court-martial to the Reviewing Authority.
84. The Government maintained that a service Judge Advocate is no less a safeguard than the civilian one sitting in air-force courts-martial because, inter alia, of the following matters: the Judge Advocate is ticketed only with the consent of the JAF (a civilian judge), he can only be removed by the JAF and on the same grounds as those for a civilian judge; he is responsible solely to the JAF in the performance of his duties as Judge Advocate; he receives no extra pay for acting as Judge Advocate and neither his pay nor promotion are affected by his performance as a Judge Advocate; the Judge Advocate in the applicant’s court-martial was not reported on as regards his performance as Judge Advocate (a practice now enshrined in Queen’s Regulation 3630) and any comments made by the JAF to the CNJA do not and cannot affect the naval careers of Judge Advocates; a Judge Advocate is first selected by the “ticketing process” and then for a particular court-martial on a rota basis and, in the latter case, only if he is not excluded by section 53C(4) of the 1957 Act or Rule 15 of the 1997 Rules; there is de facto security of tenure since a ticketed Judge Advocate remains as such indefinitely; a Judge Advocate takes a particular form of oath; he sits apart from court-martial members and his only contact with them (apart from deliberations on sentence) is in open court; and the JAF reviews the court-martial as does the Reviewing Authority and the CMAC.
85. The Court notes that, as in the air-force, the naval Judge Advocate fulfills a pivotal role in the court-martial but that, unlike his air-force equivalent, he is a serving naval officer in a post which may or may not be a legal one and who, although “ticketed” indefinitely, sits in courts-martial only from time to time. As to the Government’s reliance on the involvement of a civilian JAF, the Court observes that the JAF has no input into naval court-martial proceedings, his principal role being to report to the Reviewing Authority on those proceedings. Further, it is not the JAF but the CNJA (a naval officer) who is responsible for the initial “ticketing” of a Judge Advocate (albeit with the agreement of the JAF).
86. Moreover, the Court notes with some concern certain reporting practices as regards Judge Advocates which applied at the relevant time. The JAF could pass comments about a Judge Advocate’s court-martial performance to the CNJA (see paragraph 32 above). It may be that the CNJA had no control over promotions but the CNJA remained a senior service officer whose main functions included the appointment of legally trained service officers to legal posts in the service and who was answerable as regards those duties to the senior Admiral responsible for personnel policy. In addition, at the relevant time the JAF’s report on a Judge Advocate’s judicial performance could be forwarded to the Judge Advocate’s service reporting officer. While this may not actually have happened in the present case, the Judge Advocate took up his duties in the applicant’s court-martial at a time when his performance in those proceedings could, in principle, have been the subject of a report to his evaluating service officer. It is not submitted that QRRN 3630 was in force at the time of the present applicant’s court-martial (see paragraph 32 above)
87. For these reasons, the Court considers that, even if the naval Judge Advocate appointed to the applicant’s court-martial could be considered to have been independent despite the reporting matters highlighted in the preceding paragraph, the position of naval Judge Advocates cannot be considered to constitute a strong guarantee of the independence of a naval court-martial.
88. Moreover, the Court finds unconvincing the Government’s explanations as to why a serving officer was to be preferred as Judge Advocate in naval courts-martial whereas the JAG and the Judge Advocates involved air-force courts-martial were civilians.
The Government referred, in the first place, to the relatively small number of naval courts-martial. However, the Court considers that this only means that fewer naval Judge Advocates would be required. They also relied upon the knowledge a naval officer would have of the unique language, customs and environment of the Royal Navy. However, since the essential function of the Judge Advocate is to ensure the lawfulness and fairness of the court-martial and to direct the court on points of law, it is difficult to understand why a detailed knowledge of the way of life and language of the navy should be called for, particularly where, as in the present case, the offence with which the applicant was charged was the ordinary criminal offence of malicious wounding. In any event, the Court is not persuaded that a civilian Judge Advocate would have more difficulty in following naval language or customs than a trial judge would have with complex expert evidence in a civilian case.
The Government further relied on the need for the naval court-martial system to be “flexible” and “portable” because of the particularly mobile nature of the navy. Naval Judge Advocates were therefore preferable as,inter alia, they would have “ready access” to the area in question and would be better prepared for the difficulties and dangers of working at sea. However, the Court does not find this relevant given the Government’s clarification (in response to questions at the oral hearing) that naval courts-martial have in fact been held on land since 1986 in two trial centres (Portsmouth and Plymouth) regardless of the part of the world in which the offence was alleged to have been committed.
89. Accordingly, the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services’ courts-martial (army and air-force court-martial systems being the same for all relevant purposes &ndash the Cooper judgement,§ 107), for the absence of which the Government have offered no convincing explanation.
90. Sixthly and finally, the Court considers the Briefing Notes sent to members of naval courts-martial to be substantially less detailed and significantly less clear than the CMAU (RAF) Briefing Notes [in case of proceedings carried out in the Air Force] examined in detail in the above-cited Cooper case (see paragraphs 45-62 of that judgement). The Court considers that they are consequently less effective in safeguarding the independence of the ordinary members of courts-martial from inappropriate outside influence.
91. The Court accordingly finds that the distinctions between the air-force court-martial system assessed in the above-cited Cooper case and naval court-martial system at issue in the present case are such that the present applicant’s misgivings about the independence and impartiality of his naval court-martial, convened under the 1996 Act, can be considered to be objectively justified. His court-martial proceedings were consequently unfair (see, for example, Smith and Ford v. the United Kingdom, nos. 37475/97 and 39036/97,§ 25, 29 September 1999 and Moore and Gordon v. the United Kingdom, nos. 36529/97 and 37393/97,§ 24, 29 September 1999).
There has therefore been a violation of Article 6§ 1 of the Convention.
Comment
In Piersack v. Belgium (Application No. 8692/79, Judgement of 1 October 1982) the European Court also distinguished between the objective and subjective factors to be applied when determining the impartiality of judges. At issue in this case was the participation of the same person first as the public prosecutor and later as the president of the court in the same proceeding. The Court defined ‘impartiality’ as ‘the absence of prejudice or bias’, the former element involving ‘endeavouring to ascertain the personal conviction of a given judge in a given case’, and the latter at ‘determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect’. The Court found a violation of the impartiality requirement of Article 6. Similar circumstances were addressed in De Cubber v. Belgium (Application No. 9186/80, Judgement of 26 October 1984 - the judge having previously been the investigating magistrate), Yaacoub v. Belgium (Application No. 9976/82, Judgement of 27 November 1987 - an appellate court judge having previously acted as president of the lower chamber) and Hauschildt v. Denmark (Application No. 10486/83, Judgement of 24 May 1989 - the judge presiding at the trial had previously taken several decisions on the prolongation of the applicant’s detention on remand). The Court found violations in all of these cases on the grounds that the objective standard of impartiality was not met.
The role of special courts, notably military courts
As we have seen in Grieves v. The United Kingdom and as we will see in Loayza Tamayo v. Peru (below), international supervisory mechanisms have their reservations as regards trials by military courts. Several cases before regional courts and the Human Rights Committee confirm that one of the crucial elements in the functioning of special courts is their independence and impartiality. Once impaired, as in the Grieves case above, the whole functioning of the courts is prejudiced.
Some experts claim that special courts are inherently partial but one may argue that because of specialisation, lay assessors, for instance, can in principle be extremely well qualified for participation in the adjudication of disputes of a specialised nature. Military or security courts and military commissions are often criticised for apparent lack of impartiality and when civilians come before such courts they are often denied access to normal courts, frequently resulting in unequal treatment.
The European Court does not require a particular structure for judicial benches for independence and impartiality to be ensured. Benches may comprise professional judges only, combined panels of professional and lay judges, or other combinations. International human rights instruments stipulate neither trial by jury nor trial without jury. However, where a country has instituted a jury system, the requirements of independence and impartiality apply to juries as well.
In Sramek v. Austria (Application No. 8790/79, Judgement of 22 October 1984) the European Court considered that although the length of the term of office of the members of a property transactions tribunal was limited and there was a possibility they could be removed, these facts were insufficient to raise doubts about the members’ independence and impartiality. Moving on to the subjective evaluation of these qualities, however, the Court found the applicant’s objection to the inclusion on the tribunal of civil servants from the government to be well-founded. Referring to the importance of the appearance of justice, and noting that the composition of the panel might lead a reasonable person to doubt its independence, the Court found a violation of Article 6(1). In fact, one of the members of this body was subordinate in terms of his professional duties to one of the parties in the suit. The Court stated that, in such circumstances: ‘litigants may entertain a legitimate doubt about that person’s independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society.’
In the case below Selim Sadak, Leyla Zana, Hatip Dicle and Orhan Dogan were former members of the Turkish National Assembly and of the Democracy Party (DEP), which was dissolved by the Constitutional Court on 16 June 1994. Their parliamentary immunity was lifted, for, inter alia, expressing their political opinion. In March 1994 Mr. Dicle, Mr Dogan and Mrs. Zana were taken into police custody. Mr. Sadak was taken into police custody on 1 July 1994 and placed in detention pending trial on 12 July 1994. On 8 December 1994 the Ankara National Security Court sentenced the four applicants to fifteen years’ imprisonment for belonging to an armed gang within the meaning of Article 168, paragraph 2, of the Turkish Criminal Code. Was that security court impartial?
Sadak et al. v. Turkey
European Court of Human Rights
Application Nos. 29900/96, 29901/96, 29902/96 and 29903/96
Judgement of 17 July 2001
Keywords: independence &ndash impartiality - fair trial
[?]
33. The applicants submitted that the national security courts were special courts. They asserted that the military judges who sat on those courts were dependent on the executive, being appointed by a joint decree of the Minister of Defence and the Prime Minister, subject to the approval of the President. The assessment, promotion and security of tenure of those judges were within the control of the executive branch and, in turn, the army. The ties binding them with the executive and the army made it impossible for them to discharge their functions on the bench in an independent and impartial manner.
39. Consequently, the Court must determine whether the manner in which the Ankara National Security Court functioned infringed the applicants’ right to a fair trial, and, in particular, whether, viewed objectively, they had a legitimate reason to fear that the court which tried them lacked independence and impartiality (see Incal, cited above, p. 1572,§ 70, and Çiraklar, cited above, pp. 3072-73,§ 38). As to that question, the Court sees no reason to reach a conclusion different from that in the cases of Mr Incal and Mr Çiraklar, both of whom, like the present applicants, were civilians. It is understandable in the present case that the applicants, who were tried before a national security court on a charge of attempting to undermine the independence and unity of the State, should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service (see paragraph 32 above). On that account they could legitimately fear that the Ankara National Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In short, the applicants’ doubts as to the court’s independence and impartiality can be regarded as objectively justified (see Incal, cited above, p. 1573,§ 72 in fine).
40. The Court finds therefore that, when it tried and convicted the applicants, the Ankara National Security Court was not an independent and impartial tribunal within the meaning of Article 6 of the Convention.
Comment
The Court also decided along the same lines in Öcalan v. Turk, Application No. 46221/99, Judgement of 2 March 2003.
Selim Sadak and Leyla Zana became to be seen as symbols of the injustice of the Turkish judicial system. Partly because of pressure from the European Union, they were freed in the beginning of 2004.
In the case below the Human Rights Committee adjudicated on the functioning of a Special Court. The Committee concluded that the way in which way in which someone is selected to be tried before a special court can affect the equality of everyone before the law.
Kavanagh v. Ireland
Human Rights Committee
Communication No. 819/1998
Views of 4 April 2001
Keywords: equality before the law impartiality - fair trial
[?]
1 Article 38(3) of the Irish Constitution provides for the establishment by law of Special Courts for the trial of offences in cases where it may be determined, according to law, that the ordinary courts are “inadequate to secure the effective administration of justice and the preservation of public peace and order”. [?]
2.2. By virtue of s. 47(1) of the Act, a Special Criminal Court has jurisdiction over a “scheduled offence” (i.e. an offence specified in a list) where the Attorney-General “thinks proper” that a person so charged should be tried before the Special Criminal Court rather than the ordinary courts. [?]. The Director of Public Prosecutions (DPP) exercises these powers of the Attorney-General by delegated authority.
2.3 In contrast to the ordinary courts of criminal jurisdiction, which employ juries, Special Criminal Courts consist of three judges who reach a decision by majority vote. The Special Criminal Court also utilises a procedure different from that of the ordinary criminal courts, including that an accused cannot avail himself or herself of preliminary examination procedures concerning the evidence of certain witnesses. [?]
The facts as presented
3.1 On 2 November 1993, a serious and apparently highly-organised incident took place in which the chief executive of an Irish banking company, his wife, three children and a baby-sitter were detained and assaulted in the family home by a gang of seven members. The chief executive was thereafter induced, by threat of violence, to steal a very large amount of money from the bank concerned. The author admits having been involved in this incident, but contends that he himself had also been kidnapped by the gang prior to the incident and acted under duress and threat of violence to himself and his family.
3.2 On 19 July 1994, the author was arrested on seven charges related to the incident; namely false imprisonment, robbery, demanding money with menaces, conspiracy to demand money with menaces, and possession of a firearm with intent to commit the offence of false imprisonment. [?]
3.3 On 20 July 1994 the author was charged directly before the Special Criminal Court with all seven offences by order of the Director of Public Prosecution (DPP), dated 15 July 1994, pursuant to s.47(1) and (2) of the Act, for the scheduled offences and the non-scheduled offences respectively. [?]
3.10. [? ]The author was sentenced to terms of imprisonment of 12, 12 and 5 years respectively [?]
4.1 The author claims that the DPP’s order to try him before the Special Criminal Court violated the principles of fairness and full equality of arms protected by Article 14, paragraphs 1 and 3. The author complains that he has been seriously disadvantaged compared to other persons accused of similar or equal criminal offences, who unlike him were tried by ordinary courts and therefore could avail themselves of a wider range of possible safeguards. [?]
Consideration of the merits:
10.1 The author claims a violation of article 14, paragraph 1, of the Covenant, in that, by subjecting him to a Special Criminal Court which did not afford him a jury trial and the right to examine witnesses at a preliminary stage, he was not afforded a fair trial. The author accepts that neither jury trial nor preliminary examination is in itself required by the Covenant, and that the absence of either or both of these elements does not necessarily render a trial unfair, but he claims that all of the circumstances of his trial before a Special Criminal Court rendered his trial unfair. In the Committee’s view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation.
10.2 The author’s claim that there has been a violation of the requirement of equality before the courts and tribunals, contained in article 14, paragraph 1, parallels his claim of violation of his right under article 26 to equality before the law and to the equal protection of the law. The DPP’s decision to charge the author before the Special Criminal Court resulted in the author facing an extra-ordinary trial procedure before an extra-ordinarily constituted court. This distinction deprived the author of certain procedures under domestic law, distinguishing the author from others charged with similar offences in the ordinary courts. Within the jurisdiction of the State party, trial by jury in particular is considered an important protection, generally available to accused persons. Under article 26, the State party is therefore required to demonstrate that such a decision to try a person by another procedure was based upon reasonable and objective grounds. In this regard, the Committee notes that the State party’s law, in the Offences Against the State Act, sets out a number of specific offences which can be tried before a Special Criminal Court at the DPP’s option. It provides also that any other offence may be tried before a Special Criminal Court if the DPP is of the view that the ordinary courts are “inadequate to secure the effective administration of justice”. The Committee regards it as problematic that, even assuming that a truncated criminal system for certain serious offences is acceptable so long as it is fair, Parliament through legislation set out specific serious offences that were to come within the Special Criminal Court’s jurisdiction in the DPP’s unfettered discretion (“thinks proper”), and goes on to allow, as in the author’s case, any other offences also to be so tried if the DPP considers the ordinary courts inadequate. No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate”, and no reasons for the decision in the particular case have been provided to the Committee. Moreover, judicial review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.
10.3 The Committee considers that the State party has failed to demonstrate that the decision to try the author before the Special Criminal Court was based upon reasonable and objective grounds. Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated. In view of this finding with regard to article 26, it is unnecessary in this case to examine the issue of violation of equality “before the courts and tribunals” contained in article 14, paragraph 1, of the Covenant.
10.4 The author contends that his right to a public hearing under article 14, paragraph 1, was violated in that he was not heard by the DPP on the decision to convene a Special Criminal Court. The Committee considers that the right to public hearing applies to the trial. It does not apply to pre-trial decisions made by prosecutors and public authorities. It is not disputed that the author’s trial and appeal were openly and publicly conducted. The Committee therefore is of the view that there was no violation of the right to a public hearing. The Committee considers also that the decision to try the author before the Special Criminal Court did not, of itself, violate the presumption of innocence contained in article 14, paragraph 2.
11. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the fcts before it disclose a violation of article 26 of the Covenant. [?]
Five of the sixteen participating Committee members gave a joint individual opinion as follows;
1. While the complaint of the author can be viewed in the perspective of Article 26 under which States are bound, in their legislative, judicial and executive behaviour, to ensure that everyone is treated equally and in a non-discriminatory manner, unless otherwise justified on reasonable and objective criteria, we are of the view that there has also been a violation of the principle of equality enshrined in Article 14, paragraph 1, of the Covenant.
2. Article 14, paragraph 1, of the Covenant, in its very first sentence, entrenches the principle of equality in the judicial system itself. That principle goes beyond and is additional to the principles consecrated in the other paragraphs of Article 14 governing the fairness of trials, proof of guilt, procedural and evidential safeguards, rights of appeal and review and, finally, the prohibition against double jeopardy. That principle of equality is violated where all persons accused of committing the very same offence are not tried by the normal courts having jurisdiction in the matter, but are tried by a special court at the discretion of the Executive. This remains so whether the exercise of discretion by the Executive is or is not reviewable by the courts.
In the case below the issue of military courts is discussed as well. It demonstrates the very outspoken views of the African Commission on military courts, following on the position set out earlier in the Declaration on the Right to a Fair Trial and Legal Assistance in Africa.
The Law Office of Ghazi Suleiman v. Sudan
African Commission on Human and Peoples’ Rights
Communication Nos. 222/98 and 229/99
16th Annual Activity Report 2002 &ndash 2003
Keywords: independence - impartiality
[?]
Summary of facts
1. Communication 222/98 was submitted by Law Office of Ghazi Suleiman, a law firm based in Khartoum, Sudan, on behalf of Abdulrhaman Abd Allah Abdulrhaman Nugdalla (unemployed), Adb Elmahmoud Abu Ibrahim (religious figure) and Gabriel Matong Ding (engineer).
2. It is alleged that the three persons were put in jail and the necessary investigations carried out in accordance with the 1994 law relating to national security. The acts of these persons had [in the opinion of the government] terrorist and propaganda objectives aimed at endangering the security and peace of the country and innocent civilians.
3. The Complainant alleges that these individuals were arrested on 1st July 1998 or around this date and that they were detained by the Government of Sudan without charge and were refused contact with their lawyers or their families.
4. He adds that their lawyers requested, in vain, the competent authorities, including the Supreme Court (Constitutional Division), authorisation to visit their clients. The last of these requests was rejected on 5th August 1998. There are reasons to believe that these detainees are subjected to torture.
5. The same Law Office of Ghazi Suleiman submitted a similar communication 229/99 on behalf of 26 civilians. These are civilians being tried under a military court, accused of offences of destabilising the constitutional system, inciting people to war or engaging in the war against the State, inciting opposition against the Government and abetting criminal or terrorist organisation under the law of Sudan.
6. It is alleged that this court was established by Presidential decree and that it is mainly composed of military officers. Of the four members of the court, three are active servicemen. The communication adds that the court is empowered to make its own rules of procedure, which does not have to conform to the established rules of fair trial.
7. The Complainant claims also that all these suspects were refused the right to assistance of defenders of their choice and sufficient time and access to their files with a view to preparing their defence. Violation of the right to defence by lawyers of their choice is allegedly based on the judgement delivered by the military court on 11th October 1998 with a view to preventing the lawyers chosen by the accused to represent them. Mr. Ghazi Suleiman, main shareholder of the complaining law firm, is one of these lawyers. It is also reported that the decisions of this court are not subject to appeal.
8. Provisions the African Charter allegedly violated. The Complainant alleges that Articles 5, 6 and 7(a), (b), (c) and (d) of the African Charter have been violated.
[?]
Law
Admissibility
32. The admissibility of the communications submitted in conformity with Article 55 of the Charter is governed by the conditions set out in Article 56 of the same Charter. The applicable provision in this particular case is Article 56(5) which stipulates that: “communications?. shall be considered if they are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged?”
33. The case under consideration is a consolidation of two communications with similar allegations.
34. In his oral submissions, the delegate of the State informed the African Commission that after the adoption of the new 1998 Constitution, the political situation in Sudan was marked by important political developments which were characterised by the return to Sudan of many opposition figures and leaders of political parties living abroad, and these could go about their political activities in the country in a climate of peaceful coexistence, freedom, pardon and dialogue with a view to building the unity of Sudan. During this period, Sudan was distinguished by its respect and commitment to the United Nations Charter and the OAU Charter in its relations with neighbouring States, and it was able to re-establish relations with a view to realising cooperation and trust so as to strengthen African unity and solidarity. Following these developments, the State discontinued the legal proceedings against the Complainants. Since then, they exercise their political activities freely and in a climate of forgiveness and brotherhood.
35. The Respondent State insists that the Complainants were allowed access to justice and were not deprived of their right to submit their applications for the protection of their constitutional rights. It considers that the Complainants did enjoy all their rights provided for by Article 9 of the International Covenant on Civil and Political Rights.
36. The Complainant alleges that there are no effective means of obtaining redress because the victims were forced to renounce their right to take legal action against the Government. They were pardoned and released on condition that they renounce their right to claim damages from the Government. By renouncing the right to claim damages, the Complainants had been denied access to domestic remedies but they had not renounced their right to bring the matter before an international body.
37. The Complainant and the Respondent State are in agreement about the fact that the applicants brought an action before the Supreme Court (Constitutional Division) which on 13th August 1998 decided that the 1994 law on national security took precedence over international law on individual’s rights, including the African Charter on Human and Peoples’ Rights .
38. The Complainant adds that though the applicants were released at a later date, there has been no compensation for violation of their human rights. He affirms on the other hand that the applicants have exhausted all local remedies with regard to compensation for violation of their human rights by the decision of the Supreme Court (Constitutional Division) of 13th August 1998.
39. The African Commission feels that the obligations of the States are of an erga omnes nature and do not depend on their citizens. In any case, the fact that the victims were released does not amount to compensation for violation. The African Commission has taken note of the changes introduced by the Government of Sudan with a view to more protection of human rights but wishes to point out that these changes have no effect whatsoever on past acts of violation and that, under its mandate of protection, it must make a ruling on the communications.
40. Supported by its earlier decisions, the African Commission has always treated communications by ruling on the alleged facts at the time of submission of the communication (See communications 27/89, 46/91 and 99/93 &ndash Organisation Mondiale Contre la Torture et al/Rwanda). Accordingly, even if the situation has changed for the better allowing the release of the suspects, the position has not changed with regard to the accountability of the Government in terms of the acts of violation committed against human rights.
41. For these reasons, the African Commission declares this communication admissible.
Merits
[?]
51. The Complainant alleges that Article 7(1) of the African Charter was violated, in that it stipulates that -: Every individual shall have the right to have his cause heard. This comprises -: (a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in use;
(b) The right to be presumed innocent until proven guilty by a competent court or tribunal;
(c) The right to defense, including the right to be defended by counsel of his choice;
(d) The right to be tried within a reasonable time by an impartial court or tribunal.
52. All these provisions are inter-linked and when the right to have one’s cause heard is violated, other acts of violations may also be committed such that the detentions become illegal and are detrimental to the proceedings of a fair trial in the proper form.
53. Furthermore, in terms of form, the fact that the decisions of the military court are not subject to appeal and that civilians are brought to a military court constitutes a de jure procedural irregularity. Additionally, to prevent the submission of an appeal to competent national courts violates Article 7(1)(a) and increases the risk of not redressing the procedural defects.
54. In the communication under consideration, the Complainant alleges that the victims were declared guilty in public by investigators and highly placed Government officers. It is alleged that the Government organised wide publicity around the case, with a view to convincing the public that there had been an attempted coup and that those who had been arrested were involved in it. The Government showed open hostility towards the victims by declaring that “those responsible for the bombings” will be executed.
55. The Complainant alleges that in order to reconstitute the facts, the military court forced the victims to act as if they were committing crimes by dictating to them what to do and those pictures were filmed and used during the trial. It is claimed that the authorities attested to the guilt of the accused on the basis of these confessions. The African Commission has no proof to show that these officers were the same as those who presided over or were part of the military court that tried the case. These pictures were not presented to the African Commission as proof. In such conditions, the African Commission cannot carry out an investigation on the basis of non-established proof.
56. However, the African Commission condemns the fact that State officers carried out the publicity aimed at declaring the suspects guilty of an offence before a competent court establishes their guilt. Accordingly, the negative publicity by the Government violates the right to be presumed innocent, guaranteed by Article 7(1)(b) of the African Charter.
57. As shown in the summary of facts, the Complainants did not get permission to get assistance from counsel and those who defended them were not given sufficient time nor access to the files to prepare their defence.
58. The victims’ lawyer, Ghazi Suleiman, was not authorised to appear before the court and despite several attempts, he was deprived of the right to represent his clients or even contact them.
59. Concerning the issue of the right to defence, Communications 48/90, 50/91, 52/91, 89/93 - Amnesty International and others/Sudan are clear on this subject. The African Commission held in those communications that-: “the right to choose freely one’s counsel is fundamental for the guarantee of a fair trial. To recognise that the court has the right of veto on the choice of a counsel of one’s choice amounts to an unacceptable violation of this right. There should be an objective system of registration of lawyers so that those lawyers so registered are no longer prevented from assisting in given cases. It is essential that the national Bar is an independent organ which regulates the profession of lawyers and that courts do no longer play this role contrary to the right to defence.”
60. Refusing the victims the right to be represented by the lawyer of their choice, Ghazi Suleiman, amounts to a violation of Article 7(1)(c) of the African Charter.
61. It is alleged that the military court which tried the victims was neither competent, independent nor impartial insofar as its members were carefully selected by the Head of State. Some members of the court are active military officers. The Government did not refute this specific allegation, but just declared that the counsels submitted an appeal to the constitutional court, thus suspending the course of military proceedings. The constitutional court delivered a final judgement, rendering void the decision of the military court against the accused.
62. In its Resolution on Nigeria (adopted at the 17th session), the African Commission stated that among the serious and massive acts of violation committed in the country, there was ”the restriction of the independence of the court and the establishment of military courts which had no independence nor rules of procedure to try individuals suspected of being opponents of the military regime”
63. The Government confirmed the allegations of the Complainants concerning the membership of the military court. It informed the African Commission in its written submissions that the military court had been established by a Presidential decree and that it was mainly composed of military officers; of the four members, three were active servicemen and that the trial had taken place legally.
64. This composition of the military court alone is evidence of impartiality. Civilians appearing before and being tried by a military court presided over by active military officers who are still under military regulations violates the fundamental principles of fair trial. Likewise, depriving the court of qualified staff to ensure its impartiality is detrimental to the right to have one’s cause heard by competent organs.
65. In this regard, it is important to recall the general stand of the African Commission on the question of civilians being tried by military courts. In its Resolution on the right to a fair trial and legal aid in Africa, during the adoption of the Dakar Declaration and Recommendations, the African Commission noted that-: In many African countries, military courts or specialised criminal courts exist side by side with ordinary courts to hear and determine offences of a purely military nature committed by military staff. In carrying out this responsibility, military courts should respect the norms of a fair trial. They should in no case try civilians. Likewise, military courts should not deal with offences which are under the purview of ordinary courts.
66. Additionally, the African Commission considers that the selection of active military officers to play the role of judges violates the provisions of paragraph 10 of the fundamental principles on the independence of the judiciary which stipulates that: ”Individuals selected to carry out the functions of judges should be persons of integrity and competent, with adequate legal training and qualifications.” (Communication 224/98 &ndash Media Rights Agenda/Nigeria)
67. Article 7(1)(d) of the Charter requires the court to be impartial. Apart from the character of the membership of this military court, its composition alone gives an appearance of absence of impartiality, and this therefore constitutes a violation of Article 7(1)(d) of the African Charter.
For these reasons, the African Commission
Finds the Republic of Sudan in violation of the provisions of Articles 5, 6 and 7 (1) of the African Charter;
Urges the Government of Sudan to bring its legislation in conformity with the African Charter;
Requests the Government of Sudan to duly compensate the victims.
Comment
The African Commission is outspoken on the role of military courts. In para. 61 the impartiality is discussed. Earlier, in the above-mentioned Dakar declaration on fair trial, the following statements were included which are reflected in the position of the African Commission:
Military courts should in no circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals should not try offences that fall within the jurisdiction of regular courts. [?]
Independent of the qualities of the persons sitting in such [military] jurisdictions, their very existence constitutes a violation of the principles of impartiality and independence of the judiciary, and, thereby of Article 7(1)(d) [of the African Charter].
The Human Rights Committee in its General Comment 13 on fair trial has noted on the existence of military tribunals:
4. The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialised. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14.
Selected additional cases: HRC: Fals Borda et al. v. Colombia , Communication No. 46/1979, Views of 27 July 1982. ECHR: Smith and Ford v. The United Kingdom, Application Nos. 37475/97 and 39036/97, Judgement of 29 September 1999.
Competence of the judiciary
Both the American Convention and the ICCPR contain provisions on the competence of tribunals. The supervisory mechanisms have not yet specified what requirements should be met for ‘competence’ to be attained. Competence can be seen in terms of jurisdiction, fulfilling the requirements ratione loci, ratione materiae and ratione personae. The formulations in Article 14 ICCPR and Article 8 IACHR suggest both competences in terms of jurisdiction as well as minimum requirements in terms of quality. There is limited information with regard to competence in terms of quality requirements. In General Comment 13, the Human Rights Committee, when discussing the impartiality and independence of the judiciary, refers also implicitly to competence in terms of quality when asking states to ensure that courts are independent, impartial and competent, in particular with regard to ‘the qualifications for appointment’. While the requirement of competence is absent in the European Convention, the European Court has made it clear that there are requirements in terms of competence to the effect that the resulting case-law meets a number of minimum requirements in terms of quality, including, for instance, consistency.
In the case of Carbonara and Ventura, farmers saw their land expropriated without compensation. As a result of unclear procedures and inconsistent application of case-law, the farmers did not receive any compensation in the end; they were the victims of an incompetent judicary.
Carbonara and Ventura v. Italy
pean Court of Human Rights
Application No. 24638/94
Judgement of 30 May 2000
Keywords: competence - reasonable time
[?]
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The first three applicants and the fourth applicant’s late mother owned agricultural land in Noicattaro. In 1963 the Noicattaro Town Council began the building of a school on adjoining land. While the works were under way, it became apparent that an additional plot of land would be needed to complete the construction.
7. By a decree issued on 27 May 1970, the Prefecture of Bari authorised the Noicattaro Town Council to take possession, under an expedited procedure, of 2,649 square metres of land belonging to the applicants for a maximum period of two years with a view to expropriating it in the public interest. The land was recorded on the cadastral register as “partita” no. 10653, folio no. 34, parcel no. 590.
8. On 30 June 1970 the Noicattaro Town Council took physical possession of the land and started the building works.
9. The case file shows that the school was not completed until 28 October 1972, by which time the authorised period of possession had expired.
10. The applicants say that they waited in vain for several years for their land to be formally expropriated and for compensation.
11. By a writ served on 3 May 1980 the applicants brought an action in damages against the Noicattaro Town Council before the Bari District Court. They submitted, inter alia, that the authorities were in possession of their land illegally as the authorised period had expired without any formal expropriation or the payment of compensation.
12. The respondent council argued, in particular, that the action in damages was time-barred. [13-16 various procedures before the various tribunals]
17. On 22 January 1992 the applicants appealed to the Court of Cassation. They argued that the retrospective application of the constructive-expropriation rule established by the Court of Cassation in 1983, coupled with the retrospective application of a limitation period, infringed both their right to property and the non-discrimination principle, as guaranteed by the Constitution. Up to 1983 landowners had retained ownership throughout the period of unlawful occupation of their land. Accordingly, although a five-year limitation period applied to actions in damages, the fact that the effects of the unlawful occupation were permanent meant that the landowner was entitled to seek damages at any time, as the occupation of the land remained unlawful. However, after 1983, owners deprived of their land by the authorities lost ownership from the date the works were completed and the limitation period started to run from that point. The applicants also contested the applicability of the five-year limitation period, arguing that the Court of Cassation’s decisions on the issue were conflicting.
18.In a judgement of 1 April 1993, lodged at the registry on 26 November 1993, the Court of Cassation dismissed the applicants’ appeal. As regards which limitation period was applicable, it observed that on 22 November 1992 the full court of the Court of Cassation had resolved that issue finally, holding that the five-year period must apply. In the instant case, the applicant’s right to damages was therefore time-barred. As to the complaint that the retrospective application of the constructive-expropriation rule and the five-year limitation period was unconstitutional, since it infringed the applicants’ right to the peaceful enjoyment of their possessions and the non-discrimination principle, the Court of Cassation held that it was manifestly ill-founded.
AS TO THE LAW
[discussion on government preliminary objection, then discussion on property interference; after which the Court discusses the consistent application of case law]
63. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis cited above,§ 58) and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it.
64. The Court does not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions. However, it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible, precise and foreseeable (see the Hentrich v. France judgement of 22 September 1994, Series A no. 296-A, pp. 19-20,§ 42; and the Lithgow and Others v. the United Kingdom judgement of 8 July 1986, Series A no. 102, p. 47,§ 110).
65. In that connection, the Court observes that the case-law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently (see paragraphs 21 to 35 above), a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and which, as a consequence, is inconsistent with the requirement of lawfulness.
66. The Court also notes that under the rule established by the Court of Cassation in its judgement no. 1464 of 1983 every constructive expropriation follows the unlawful taking of possession of the land. The unlawfulness may exist at the outset, if the taking of possession is unauthorised, or arise subsequently, if the authorities remain in possession beyond the authorised period. The Court has reservations as to the compatibility with the requirement of lawfulness of a mechanism which, generally, enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli.
67. It notes, finally, that compensation for deprivation of property is not paid automatically by the authorities, but must be claimed by the landowner within five years. That may prove to be inadequate protection.
68. In any event, the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention.
69. In the instant case, the Court notes that, pursuant to the constructive-expropriation rule, the Court of Cassation held that the applicants had been deprived of their land from 28 October 1972. That transfer of property to the authorities therefore occurred during the period of possession without title (sine titulo), automatically, following completion of the public works. The Court considers that that situation could not be regarded as “foreseeable” as it was only in the final decision, the judgement of the Court of Cassation, that the constructive-expropriation rule could be regarded as being effectively applied. On that point, the Court refers to the evolution of the case-law (see paragraphs 21 to 31 above) and to the fact that a case-law rule does not bind the courts as regards its application (see paragraph 53 above). The Court consequently finds that the applicants did not become certain that they had been deprived of their land until 26 November 1993, when the Court of Cassation’s judgement was lodged with the registry.
Comment
The question of competence in terms of minimum quality requirements is generally not explicitly discussed in handbooks. It is a field in which minimum requirements are emerging, of which the above case provides some indications. In Jokela v. Finland (Application No. 28856, Judgement of 21 May 2002) the European Court gave some indications regarding quality considerations when it comes to the actual verdict. In the case concerned, two courts each came to different conclusions in terms of the value of land. In this case, the Court gave indications in terms of consistency and minimum requirements.
64. In sum, notwithstanding the Government’s various explanations of the discrepancy in the market value arrived at in the respective proceedings, those reasons were not borne out in the decisions given in the tax proceedings, even though the County Administrative Court rendered its decision after the Land Court’s assessment of the market value of the expropriated land had acquired legal force &ndash and which, as the Court has found above (see § 54), took into account the market value as late as in 1993.
65. The Court considers that the applicants could legitimately expect a reasonably consistent approach from the authorities and courts which were required to determine the market value of the land in the respective proceedings and, in the absence of such consistency, a sufficient explanation for the different valuation of the property in question. For the reasons indicated above, there was neither consistency nor such explanations for the lack of consistency as to be compatible with the applicants’ legally protected expectations as property owners. In these circumstances the outcome of those proceedings was incompatible with the applicants’ general right to peaceful enjoyment of their possessions as guaranteed in the first sentence of the first paragraph of Article 1 of Protocol No. 1. Accordingly, this provision has been violated.
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72. The Court reiterates that Article 6§ 1 places the domestic tribunal under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision. This provision further obliges the courts to give adequate reasons for their judgements, but cannot be understood as requiring a detailed answer to every argument. The extent to which the duty to give reasons applies may vary according to the nature of the decision at issue. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgements. The question whether a court has failed to fulfil the obligation to state reasons can therefore only be determined in the light of the circumstances of the case.
73. The notion of a fair procedure requires furthermore that a national court which has given sparse reasons for its decision, whether by incorporating the reasons of a lower court or otherwise, did in fact address the essential issues which were submitted to its jurisdiction and did not merely endorse without further ado the findings reached by a lower instance. Where an appellate court simply endorses the reasons for the lower court’s decision when dismissing an appeal, the lower court or authority must have provided such reasons as to enable the parties to make effective use of their right of appeal (see, for example, the Helle v. Finland judgement of 19 December 1997, Reports of Judgements and Decisions 1997-VIII, § 55-60, the García Ruiz v. Spain judgement of 21 January 1999, Reports of Judgements and Decisions 1999-I,§ 26, and Hirvisaari v. Finland, no. 49684/99,§ 30, 27 September 2001).
Selected additional cases: ECHR: Jokela v. Finland, Application No. 28856, Judgement of 21 May 2002.