Thursday, July 31, 2014

Contest of wills between civilian and military courts in Bolivia

Página Siete reports that a Bolivian civilian court has again entered an order concerning the military pretrial detention of Johnny Feliz Gil, a warrant officer who heads the association of warrant officers and sergeants. The civilian court's order requires the military court to comply with the requirements of the Code of Criminal Procedure for pretrial detention.

Commandant Donohoe's case returns to the news

Irish Defence Forces Air Corps Commandant Nile (Niall) Donohoe's court-martial has come back to life. His conviction on the part of the case that included charges of employing insulting language towards a superior was overturned in 2012 by the High Court. Other charges, which concern events alleged to have occurred in 2007, are now on track for trial. According to this Irish Times report, Comdt. Donohoe seeks to raise a variety of procedural issues.

Wednesday, July 30, 2014

Call for broad reform of Spanish military justice

Mariano Casado
El País has this op-ed by Mariano Casado, Secretary General of the United Association of Spanish Soldiers. He catalogs a number of recent military justice related controversies (some of which have been noted on Global Military Justice Reform), argues for judicial independence, and writes, in part (rough Google translation):
Last Friday, July 25, 2014, the Cabinet approved a draft Military Penal Code for submission to the Congress of Deputies. No one doubts that the military penal framework has to be modified. But there isn't agreement on the design of the new military criminal law. And, as a negative point, this bill has been developed by the military, as if such a rule would not affect all citizens, "as if it were an autonomous legal system" as highlighted recently by Professor De León. Or as if it were considered that only those with military status are able to recognize the legal rights, principles and values ​​that should have special protection in Spanish military criminal law. Those who think so are mistaken. What happens is that the endogamous and corporatist approach is the best way to protect a number of situations and privileges that cannot be allowed in an advanced democracy, in which the Armed Forces and the law governing them must at all times serve the general interest and not special privileges that should disappear.

Tuesday, July 29, 2014

Jurisdictional battle lines being drawn in Brazil

Prof. Flavia Piovesan
The question of military jurisdiction over offenses committed by civilians is taking center stage in Brazil. For competing views, compare this op-ed by law professors Flavia Piovesan and Juliana Cesario Alvim with this one by President Maria Elizabeth Guimarães Teixeira Rocha of the Supreme Military Tribunal, who points out that Brazil has a long tradition of subjecting civilians to military jurisdiction for some offenses. The two professors, on the other hand, argue (rough Google translation):
Virtually no democratic nation allows, in actuality, the trial of civilians by military courts in peacetime. The Inter-American Court of Human Rights, to whose jurisdiction Brazil has submitted, is emphatic in asserting that in a democratic state military jurisdiction must have a restrictive scope directly linked to the protection of legal interests that are characteristic of the military. For the Court, only active duty military personnel may be tried by military courts, and only for military crimes. To do otherwise is an affront to the right to due process and the right to a fair hearing conducted by an impartial and independent judge. This is also the guidance of the UN and the European Court of Human Rights.

The Canadian military criminal justice system at a crossroad

The Supreme Court of Canada (SCC) on July 24, 2014 granted leave to appeal in the Moriarity case. It should be recalled that in an earlier decision (R. v. Moriarity  2014 CMAC 1) the Court Martial Appeal Court of Canada (CMAC) ruled that the jurisdiction of Canadian military tribunals to try ordinary criminal law and federal statutory offences is conditional on the existence of a military nexus. In other words, the offence committed has to be "a service connected offence". It is only at that condition that s.130 of the National Defence Act RSC 1985, c N-5 (Act), which imports into the Act all the Canadian Criminal Code and federal statutory offences, is not constitutionally overbroad.

Three options are now open to the SCC in disposing of the case on its merits. The first is to affirm the decision of the CMAC. The second is to reverse the decision and conclude that the jurisdiction of Canadian military tribunals is not conditional on the existence of a military nexus and, therefore, the importing s. 130 is not constitutionally overbroad. Finally, the third option also implies a reversal of the CMAC decision, but a finding that s. 130, as claimed by the respondent, is constitutionally overbroad. This third option, if accepted, would bring Canadian military criminal justice in line with the military reform movement actually taking place around the world as well as international law and human rights trends. Ordinary criminal law offences would then be tried by civilian courts without prejudice to the military's right to institute real disciplinary proceedings before military tribunals.

As the law stands in Canada, as a result of ss. 2, 60-65 and 130 of the Act, members of the Canadian Forces as well as civilians accompanying the Canadian Forces (children, other family members, workers under contract, dependants and journalists) who commit ordinary criminal law offences fall under the jurisdiction of military courts.

If the SCC were to adopt the first option and rule out the necessity of a military nexus, the above persons will routinely be prosecuted before and tried by military courts for any ordinary criminal law and federal statutory offences even if they have no connection whatsoever with military discipline, efficiency or even morale of the military. Such prosecutions would fail to meet the objectives and the rationale for the existence of a separate military criminal justice system. In R. v. Genereux, (1992) 1 S.C.R. 259, Chief Justice Lamer wrote at p. 293 of his reasons for judgment: "The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military" (emphasis added).

Moreover, the SCC would be reversing its earlier decision in Mackay v. The Queen (1960) 2 S.C.R. 370, at a time when the status test established by the U.S. Supreme Court in Solorio v. United States, 483 US 435 (1987), is under strong criticism and military justice systems around the world are depriving military tribunals of their jurisdiction over ordinary criminal law offences as well as over civilians. It would also be reversing its findings in the Genereux case.

Perhaps more disturbing is the fact that the SCC would be setting aside the only requirement or condition for the application of the exception to the constitutional guarantee of the right to a trial by a jury. In R. v. Brown (1995), 5 C.M.A.C. 281, at paras. 13-14, Justice Hugessen of the CMAC wrote that "it is now well settled that the exception to the guarantee of the right to a jury trial in paragraph 11(f) (of the Canadian Charter of Rights and Freedoms) is triggered by the existence of a military nexus with the crime charged". The only justification I have found for such a far-reaching and detrimental exception to an accused rights is this statement of the then Attorney General of Canada: there never was a trial by jury in the British and Canadian military justice system. I should add that at that very same time there never was an entrenched Charter of Rights for an accused. One would have expected a better justification for such a deprival of this fundamental right as well as others that remained available to accused prosecuted before civilian tribunals.

Abolition of the military nexus requirement would mean that persons tried before military courts would lose the right to a jury trial, the benefit of hybrid offences, the benefit of a preliminary inquiry as well as the panoply of sentences available to civilian tribunals.

The third option offers the SCC the opportunity to revisit the existing scope of the purpose of a separate system of military tribunals in view of the evolving guarantees of the Canadian Charter of Rights and Freedoms, changing circumstances and the development of international human rights.

In the Mackay case, supra, at pp. 380-81, Chief Justice Laskin and Justice Estey, in dissent, were of the view that persons charged with an offence under the ordinary criminal law should be prosecuted before civilian tribunals, "free from any suspicion of influence or dependency on others". They went on to say: "There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved". They finally concluded that they "could not conceive that there can be in this country two such disparate ways of trying offences against ordinary law, depending on whether the accused is a member of the armed forces or not".

The majority decision in Mackay was rendered not long after WWII. The Cold War was on and the spirit of war was still around. In addition accused rights and protection were not constitutionalized in Canada. This is no longer the case. While I agree that discipline and efficiency are two fundamental military values, ordinary criminal law and federal statutory offences are not disciplinary offences. The prosecution of these offences should be left to civilian authorities and, as a general rule, the trial should take place before civilian courts. The military is a profession of arms and, as is the case for any other profession in Canada, whether it be the medical or the legal profession, to cite two examples,  offenders can be prosecuted for conduct prejudicial to the profession, good order and discipline before the appropriate disciplinary board or tribunal.