It is the aim of this thesis to analyse the framework and relevant case law on requirements of independence and impartiality under Article 14 (1) ICCPR, Article 8 (1) IACHR and Article 6 (1) ECHR in relation to military courts.
One has to bear in mind that most of the judgments discussed were not solely concerned with questions of impartiality and independence, but also with other fundamental rights, thus the paper has to be read in a context and framework of rights entrenched in the respective Convention or Covenant.
Military Courts are not a new phenomenon, they were (and are) a feature of the military system and were originally intended as a tool to uphold a structure which is rooted in vertical influence, thus they have a direct nexus to the executive branch of the state which makes them relatively easy to set up and control on the other hand however, due to their proximity to other branches of the state they can blur the line of the underlying principle – separation of powers -. Several problems spring from the latter aspect[…]. Another problem, which will be also discussed below is that of scrutiny, open courts are subject to public scrutiny whereas military or even partly military courts often lack any form of control. This line of reasoning leads to two characteristical groups of cases, firstly cases involving civilians which are trialled by a military court often in relation to state security issues, the other problem is that of impunity where members of the military sit trial over comrades often resulting in an impunity verdict.
Bearing these two groups of cases in mind an approach was taken, first to set out the relevant international legal framework and principles on independence and impartiality, the next part will then, building on the former, analyse the state reports and case law. In doing so it will be shown, in how far the different controlling bodies have developed
the requirements of independence and impartiality up to the current date and have found consensus in areas i.e. trial of civilians before military courts but differ in their approach to prevent the latter.
After a first overview of the case law it became clear that the gravest interference with the fair trial right has occurred in South America, having said this, at the core of this paper is the analysis of case law before the Inter American Commission of Human Rights and the Inter American Court.
Table of Contents
Introduction
Structure
A. International Legal Framework
I. Binding Instruments
II. Non-Binding Instruments
B. Impartiality & Independence (Preliminary thoughts)
I. Introduction
II. Impartiality
III. Independence
IV. Summary
C. Application of trial guarantees (impartiality & independence)
I. Military Tribunals –distinguished
1. ICCPR
2. IACHR / ECHR
II. ICCPR
1. Introduction
2. State reports / General Comment Nr. 13 + 32
3. Individual complaints
a. Bazzano v Uruguay
b. Little v Jamaica
c. Campos v Peru
d. Kurbanova v Tajikistan
4. Summary
III. IACHR
1. Introduction
2. State Reports / Annual Reports (Commission)
a. Uruguay
b. Colombia (first)
c. Guatemala / Chile
d. Peru
e. Columbia (second)
f. Summary
3. Individual complaints (Commission)
a. Introduction
b. Alexis Fuentes Guerro et al. v Columbia
c. Santos Mendivelso Coconubo v Columbia
d. Lindo and Concha v Peru
e Diniz Bento da Silva v Brazil
f. Summary
4. Individual complaints (Court)
a. Introduction
b. Loayza-Tamayo v Peru
c. Petruzzi et al. v Peru
d. Case of 19 merchants v Columbia
e. Lori Berenson-Mejía v Peru
f. Summary
IV. ECHR
1. Introduction
2. Independence & Impartiality
a. England
aa. Findlay v The United Kingdom
bb. Steel and Morris v The United Kingdom
cc. Bell v The United Kingdom
b. Turkey
aa. Introduction
bb. Incal v Turkey
cc. Çıraklar v Turkey
c. Summary
Objectives & Core Themes
This thesis examines the international and regional legal frameworks governing the requirements of independence and impartiality of the judiciary, specifically regarding military courts. The central research aim is to analyze how various controlling bodies under the ICCPR, IACHR, and ECHR address these requirements in the context of military jurisdiction over civilians and the resulting implications for fair trial rights.
- Analysis of the international legal framework for fair trial rights.
- Evaluation of judicial independence and impartiality in military tribunal systems.
- Comparative review of case law and state reports from UN, Inter-American, and European human rights mechanisms.
- Investigation into the specific challenges posed by the trial of civilians in military courts.
- Examination of the structural links between military, executive, and judicial branches.
Excerpt from the Book
B. Impartiality and Independence (Preliminary thoughts)
Impartiality and independence are the corner stones of the court system to abide by the rule of law. They are the safeguards which guarantee the position of the court as third party, neutral observer to a situation, thereby allowing the judge to act free from outside interference and guaranteeing a position for the accused where his trial rights are observed. This third party position is said to be potentially interfered with from the executive branch of the state, in case of military tribunals interference could stem from within the military itself or the executive branch of the state or a mix of the two seems possible, where the military justice system is rooted so deeply in the military structure that it lacks any independence.
B.II. Impartiality
Impartiality of the court relates in each of the three discussed instruments to the absence of a biased judge (subjective element) and to the composition of the court (objective element).
As impartiality relates directly to the objectivity of the judge the test whether impartiality was observed during proceedings must be of the same nature, asking for an objective bystander to assess the judges subjective behaviour (state of mind to the facts and parties to the case) and on the other hand the objectivity of the court itself (composition of the court, technicalities of the case).
Personal prejudice or a lack of impartiality would be difficult to prove in a case but it is still relevant and directly linked to the establishment of the court, especially in military tribunals. Thus far no unambiguous test was established by either of the three institutions to test the personal impartiality of the judge.
Summary of Chapters
Introduction: Outlines the scope of the thesis regarding the analysis of judicial independence and impartiality under key human rights articles in relation to military courts.
Structure: Explains the methodological focus on narrowing down the topic to international case law and the specific challenges of military tribunals.
A. International Legal Framework: Provides an overview of binding and non-binding international instruments defining the fair trial right and judicial standards.
B. Impartiality & Independence (Preliminary thoughts): Defines the core concepts of independence and impartiality as essential safeguards for the rule of law.
C. Application of trial guarantees (impartiality & independence): Analyzes how the ICCPR, IACHR, and ECHR bodies apply trial guarantees to military courts through state reports and individual case law.
D. Conclusions & Summary: Synthesizes the findings, noting the trends in case law towards protecting fair trial rights against executive influence in military judicial systems.
Keywords
Fair Trial, Independence of the Judiciary, Impartiality, Military Tribunals, Human Rights, ICCPR, IACHR, ECHR, Rule of Law, Separation of Powers, Civilians, State Reports, Case Law, Human Rights Committee, Judicial Scrutiny.
Frequently Asked Questions
What is the primary focus of this research paper?
The paper focuses on the requirements of judicial independence and impartiality within military courts, analyzing how these standards are upheld under international law.
What are the central themes discussed in the work?
The central themes include the separation of powers, the role of military tribunals in legal systems, the rights of civilians when trialed by military courts, and the evolution of international oversight.
What is the primary research goal?
The goal is to analyze the relevant framework and case law of major human rights bodies concerning the independence and impartiality of courts in relation to military jurisdiction.
Which scientific methods are employed?
The study utilizes a comparative legal analysis, evaluating case law, state reports, and general comments from the Human Rights Committee, the Inter-American system, and the European Court of Human Rights.
What topics are covered in the main section of the paper?
The main section details the international legal framework, analyzes specific individual complaints and state reports, and contrasts the approaches of different regional human rights institutions.
Which keywords characterize this paper?
Key terms include Fair Trial, Judicial Independence, Military Tribunals, Human Rights Conventions, and the separation of judicial and executive powers.
How does the author define "faceless judges" in the context of the Peru cases?
The author refers to "faceless judges" as a system where the identity of the judge remains unknown to the accused, which poses significant risks to public scrutiny and independence.
What does the "natural judge" concept imply in the Inter-American Court's jurisprudence?
It implies that military courts are often incompetent to try civilians, as the "natural judge" for a civilian should be a civilian judicial body rather than a military tribunal.
- Arbeit zitieren
- Volker Schleiff (Autor:in), 2008, The right to a fair trial - Requirements of impartiality and independence under Articles 14 (1) ICCPR, 8 (1) IACHR and 6 (1) ECHR in relation to military courts, München, GRIN Verlag, https://www.grin.com/document/118534
