A citizen who was tried by military courts for a criminal offense because his co-defendant was then serving in the military did not receive a fair trial. Reflection on the independence and impartiality of military courts.

JUDGMENT

Mustafa v. Bugaria 28.11.2019(no. 1230/17)

see here

SUMMARY

Jurisdiction of military courts and the right of a citizen to a fair trial. A non-military individual was arrested and convicted by military courts of a common criminal offense because one of the other defendants in the case served in the military at the time the offense was committed. The applicant argued that those courts were neither independent nor impartial.

The Court found in particular that his objections to the independence and impartiality of the military courts could be considered objectively justified.

According to the ECtHR: (a) Military judges are subject to military discipline, their formal integration into the army and the status of military court judges, who by definition were military officials, proved that military courts could not be regarded as Bulgarian courts as equivalent to normal courts.

(b) Bulgarian law provides that military courts have exclusive jurisdiction over crimes committed jointly by civilians and civilians, even outside of their military duties.

The Strasbourg Court concluded that the vague allocation by national law to the jurisdiction of military courts of certain categories of offenses was not sufficient. It was necessary to establish the existence of “compelling reasons” for any case of civilian court martial.

Violation of the right to a fair trial under Article 6 § 1 of the European Convention on Human Rights

PROVISION

Article 6

PRINCIPAL FACTS

The applicant, Hyusein Ahmed Mustafa, is a Bulgarian national who was born in 1976. He lives in
Burgas (Bulgaria).

In 2011 Mr Mustafa was charged with the organisation and leadership of a criminal group whose aim
was to obtain various financial benefits, and with illegal trafficking in high-value goods and objects
for commercial purposes. On account of the connection between the charges against the presumed
members of the group and the fact that one of them had been in the armed forces at the time, all
the defendants were tried by a military court.

In 2015 the court, made up of a military judge and two jurors, sentenced Mr Mustafa to five years’
imprisonment and fined him about 10,226 euros (EUR). The judgment was upheld by the Military
Court of Appeal, on which three military judges sat. Mr Mustafa appealed on points of law,
challenging, among his other arguments, the independence and impartiality of the military courts.
In 2016 the Supreme Court of Cassation upheld Mr Mustafa’s conviction for illegal cross-border
trafficking and acquitted him of the charges of organising and leading a criminal group. The sentence
was reduced to three years’ imprisonment and the amount of the fine remained the same.

In addition, the Supreme Court of Cassation took the view that the status of the military judges
afforded sufficient safeguards to preserve their independence and impartiality; and in particular that
they enjoyed the same constitutional safeguards as those applying to civil judges and were subject
to the same rules on pay, discipline and promotion. It added that, even though they had military
ranks, they were not career officers and their ranks had been given to them by the administrative
head of the court to which they had been appointed.

THE DECISION OF THE COURT…

Article 6 § 1 (right to a fair trial)

The Court noted that military judges followed the same professional training as their civilian
counterparts and enjoyed the same constitutional safeguards, since they were appointed by the
High Council of the Judiciary, enjoying tenure and stability of employment.

However, certain characteristics of military courts were likely to raise doubts as to their
independence and impartiality. Military judges were subject to military discipline. Once appointed,
they were incorporated into the army and given a rank. Even though the same procedural rules
applied to cases before military courts and to cases before ordinary criminal courts, factors such as
the judges being subject to military discipline, their formal incorporation into the army, and the
status of the jurors of the military court, who were by definition army officers, indicated that military
courts under Bulgarian law could not be regarded as equivalent to the ordinary courts.

Moreover, under Bulgarian law, cases concerning criminal groups fell, in principle, within the
jurisdiction of the Specialised Criminal Court. However, in the present case, the only reason why the
case was examined by the military courts was that one of the accused had been serving in the armed
forces, because Article 411a of the Code of Criminal Procedure provided that the jurisdiction of the
military courts prevailed over the jurisdiction of the Specialised Criminal Court.

The Court referred to its case-law to the effect that the authority of military criminal justice should
be extended to civilians only if there were compelling reasons to do so. This principle was in line with
the trend internationally to exclude criminal matters from the jurisdiction of military courts when it
came to trying civilians. The existence of “compelling reasons” had to be demonstrated in each
individual case. The abstract allocation by national legislation of certain categories of offences to
military courts was thus not sufficient. The provisions of the Bulgarian Code of Criminal Procedure provided for the de facto exclusive jurisdiction of military courts to deal with offences committed
jointly by military personnel and civilians, even outside the context of military activities.

Mr Mustafa had been committed to stand trial before the military courts under the legal provisions
concerning the jurisdiction of those courts, in the absence of any assessment of the individual
circumstances other than the fact that one of the accused was in the army at the time.

However, other factors should have been taken into consideration, such as the fact that no offence
against the armed forces or misappropriation of army property was involved. Thus the need for the
case to be heard by a military court could not be considered absolute. In certain cases the committal
of all defendants to stand trial before a civilian court could be envisaged. Consequently, the Court
did not find any “compelling reasons” to justify the trial of a civilian by a military criminal court in the
present case. It also noted that the Supreme Court of Cassation did not have full jurisdiction to
review the case. As the exclusive jurisdiction of the military courts derived directly from the
provisions of the law, Mr Mustafa’s appeal to that court could not change the procedure.

The Court therefore found that Mr Mustafa’s doubts about the independence and impartiality of the
military courts could be regarded as objectively justified. There had thus been a violation of Article 6
§ 1 de la Convention.

Just satisfaction (Article 41)

The Court held that Bulgaria was to pay Mr Mustafa 2,500 euros (EUR) in respect of non-pecuniary
damage and EUR 1,500 in respect of costs and expenses.


ECHRCaseLaw

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