Human Rights our
Collective Responsibility
115. In support of this, concerning independence, the Complainants submitted that the
Egyptian Military Justice System is neither Independent nor Impartial, citing the
Commission's Principles of Fair Trial, the complainant submitted that there are clear
criteria as to what constitutes an independent court, i.e. that [t]here shall not be any
inappropriate or unwarranted interference with the judicial process nor shall decisions
by judicial bodies be subject to revision except through judicial review, or the mitigation
or commutation of sentence by competent authorities, under the law.99
116. They also submit along the requirement that -[a]ll judicial bodies shall be independent
of the executive branch.F?
117. The Complainants' cited Marcel Wetsh "okonda Koso and others v. ORC and stated the
Commission's reaffirmed position that -the independence of a court refers to the
independence of the court uis-a-tns the Executive. This implies the consideration of the
mode of designation of its members, the duration of their mandate, the existence of
protection against external pressures and the issue of real or perceived independence.Pt
118. The Complainant reiterated the Commission's positioning that considers that the
selection of active military officers to 'play the role of Judges to violates the provisions of
paragraph 10 of the fundamental principles on the independence of the judiciary, which
stipulates that Individuals selected to carry out the functions of judges should be
persons of integrity and competence, with adequate legal training and qualifications.tv119. The Complainants provided a comparison with other human rights bodies, such as the
Inter-American Court and the European Court that have criticised the use of the
military justice system to try human rights abuses as lacking such procedural
guarantee.
120. Citing for example the case of La Cantuta v. PerU,103 where the Inter-American Court
stated that -military courts do not guarantee the necessary independence and
impartiality to try cases involving members of the Armed Forces. The Court noted that
the characteristics like hierarchical subordination and the fact that military judges are
on active duty, make it impossible to regard military courts as a true judicial system.
Principle A.4(f).
100 Ibid, Principle A.4(g).
99