25 Dec The jurisdiction of military courts for crimes committed by civilians is not in accordance with Article 6 of the Convention

In the case of Mustafa v. Bulgaria (application no. 1230/17, 28.11.2019) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights.

Mr Mustafa, a civilian who had no links to the army, was tried and convicted by military courts for an ordinary offence because one of the other defendants in the case was serving in the army at the time it was committed. Mr Mustafa argued that those courts were neither independent nor impartial. 

The Court found in particular that Mr Mustafa’s doubts about the independence and impartiality of the military courts could be regarded as objectively justified. 

First, factors such as the military 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.

Secondly, Bulgarian law provided for the military courts having exclusive jurisdiction over offences committed jointly by military personnel and civilians, even outside the context of military activities. The abstract allocation by national legislation of certain categories of offences to the military courts was not sufficient; it was necessary to demonstrate the existence of “compelling reasons” in each case. 

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.

References from the official website of the European Court of Human Rights