Thursday, July 24, 2014

Supreme Court of Canada grants leave to appeal in Moriarity

The Supreme Court of Canada has granted leave to appeal in Moriarity v. H.M. The Queen. Here is the summary prepared by the Registrar:
Canadian Charter of Rights and Freedoms – Whether s. 130(1)(a) of the National Defence Act violates s. 7 and s. 11(f) of the Charter – Whether the Court Martial Appeal Court erred in finding that the military nexus doctrine applies to s. 130(1)(a) of the National Defence Act – Whether s. 130(1)(a) of the National Defence Act is constitutional – Canadian Charter of Rights and Freedoms, ss. 7 and 11(f) – Constitution Act, 1982, s. 52 – Constitution Act, 1867, s. 91(7).
The applicant Moriarity was a Cadet Instructor Cadre officer. While in a position of trust and authority with respect to cadets he interacted with, he engaged in inappropriate sexual relationships with two cadets. He was charged with four Criminal Code offences: two offences relating to sexual exploitation contrary to s. 153, one offence for sexual assault contrary to s. 271 and one offence for invitation to sexual touching contrary to s. 152.
The applicant Hannah was a member of the Canadian Forces and a student at the Canadian Forces Base Gagetown. He purchased and delivered a controlled substance to another engineering candidate and the drugs were found in that student’s quarters on the base. He was charged with trafficking of a substance included in Schedule IV contrary to s. 5(1) of the Controlled Drugs and Substances Act and unlawful selling of a substance containing a drug included in Schedule F contrary to the Food and Drug Regulations and Food and Drugs Act.
The applicants confessed and made admissions but challenged the constitutionality of s. 130(1)(a) of the National Defence Act.
For an earlier post about the decision of the Court Martial Appeal Court, 2014 CMAC 1, click here

Moroccan reform bill passed by House of Representatives

The lower house of the Moroccan Parliament has approved a bill to reform military justice. According to this post on AtlasInfo.fr (rough Google translation):
In a plenary session on Wednesday night, the House of Representatives unanimously passed a bill relating to military justice which aspires to achieve a deep and comprehensive reform of military justice law adopted in 1956. 
This bill focuses on four main areas, namely the consolidation of the powers of the military court in order to make it a specialized court and not an exceptional one, the definition of the legal nature of the tribunal, the reorganization and support the principle of the independence of the military justice system, and strengthening the guarantees of a fair trial before this court and the protection of the rights of litigants. 
The bill reduces the powers of the military tribunal, since this court will no longer be able to try civilians except in wartime and may not try common law crimes committed by military or paramilitary personnel, crimes committed by minors, or those committed by the military police in the performance of their duties. 
In order to strengthen the guarantees of a fair trial before a military tribunal, the new law reduces from 16 to 5 the number of capital crimes. These cases are defined with great precision and given the sensitivity of the subject, while bearing in mind the supreme interests of Morocco and the peculiarities of the military. It was decided to follow the Code of Criminal Procedure in this regard. 
In an introductory note discussing this Act, the Minister Delegate to the Head of Government responsible for the administration of national defense, Abdellatif Loudiyi, said that this law is a pioneering initiative and a qualitative leap in the process of judicial reform in accordance with high guidance of King Mohammed VI and the implementation of the provisions of the 2011 Constitution.

Wednesday, July 23, 2014

Military immunity from civilian prosecution in India: the Armed Forces (Special Powers) Act, 1958

Somehow we missed this July 19, 2014 article in The New York Times about the immunity of Indian military personnel from civilian prosecution in certain "disturbed" areas. Gardiner Harris writes:
[A] decade [after a particularly shocking murder], no one has been arrested or charged with a crime. Activists, lawyers and ordinary people here say they know exactly why: a colonial-era law in effect in India’s periphery that gives blanket immunity from prosecution in civilian courts to Indian soldiers for all crimes, including rape.
Human rights advocates have for years called for the repeal of the law, known as the Armed Forces [(]Special Powers[)] Act[, 1958]. Christof Heyns, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, wrote last year in a report to the United Nations Human Rights Council that the powers granted under the law “are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended.”

Germany withholds evidence in U.S. Air Force murder case

Because the United States has not ruled out the death penalty in a U.S. Air Force murder case arising in Germany, German authorities have withheld evidence from the Article 32, UCMJ, pretrial investigation, including the victim's throat. Details of the case appear in this Stars and Stripes article. The victim, a U.S. Navy petty officer second class, was an Armed Forces Network broadcaster.
[Achim] Nunenmann, the Kaiserslautern senior prosecutor, said his office is willing to cooperate – if the U.S. military takes the death penalty off the table.
“If they want the exhibit (physical evidence), they need to do something,” he said.

Tuesday, July 22, 2014

The Redstone Arsenal Case

Col. John C. Nickerson, U.S. Army
Every once in a while Global Military Justice Reform stumbles on an old case that has fallen from view. Click here for AL.com's story about Army Col. John C. Nickerson and the 1957 Redstone Arsenal court-martial. Spoiler alert: it concerns leaks.