REQUIREMENTS OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS CONCERNING MILITARY JUSTICE (Wymogi europejskiej Konwencji o ochronie praw czlowieka i podstawowych wolnosci dotyczace sadownictwa wojskowego)
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Military courts are a special category of bodies in the administration of justice, distinguished from ordinary courts by subject-matter and personal jurisdiction. They stand in the tradition of many European states, and also exist in Poland. This article deals with requirements put on such bodies by the European Convention on the Protection of Human Rights and Fundamental Freedoms in the context of the jurisprudence of the European Court of Human Rights in Strasbourg. Although the Convention does not directly address the issue of military justice, the general requirements concerning any law-administration body existing in the state apply also to the Tribunal, as it stressed itself. However , the unique nature of these bodies and, particularly, the status of judges of military courts, along with their jurisdiction including, sometimes, not only members of the armed forces, but also civilian personnel or even persons unrelated to the armed forces, raises a question of their independence and impartiality. First, the article examines the position of the armed forces in the system of government and the status of military courts. Next, it considers the issue of jurisdiction of military courts over both members of the armed forces and civilian. Moreover, the status of judges of military courts is widely discussed. Finally, the article deals with most important problems of appellate justice. The cited judgments of the European Court of Human Rights allow us to formulate general guidance that are applicable to military courts in the states parties to the Convention. They include, in particular: the limitation of their jurisdiction, generally, to members of armed forces and civilian employees of the armed forces, guarantees of independence and impartiality of the judges and establishing an effective appellate mechanism in criminal cases.
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