Right to a lawyer; guarantees of the accused person’s defence in military criminal proceedings
Rights of the defence and to a fair trial
Court-appointed military defence counsel
Time limit for appeal
RULING Nº 34/96
17 of January of 1996
In military criminal procedure, defendants are entitled to choose their defence counsel. If no choice is exercised, they will always be guaranteed defence in court preferably by someone with legal knowledge.
The qualification required for properly exercising defence rights is legal knowledge; neither professional experience nor any other technical knowledge can be considered sufficient for guaranteeing those rights. Whenever possible the defence counsel must therefore be a lawyer.
In military criminal procedure, the time allowed for filing appeals, presenting the grounds and submitting documentary evidence is significantly shorter - by approximately a half - than in ordinary criminal procedure. However, the general interests of the military do not make it necessary to limit defendants' defence guarantees or their right of access to the courts in this way. Moreover, given the special nature of military criminal procedure and the fact that particularly severe penalties may be applied, allowing a shorter time for filing appeals than under ordinary criminal procedure is not appropriate.
This judgment concerns various rules of the Military Code of Justice, in particular a provision not requiring a lawyer to be appointed in military criminal procedure and another setting a period of five days within which appeals had to be lodged, together with grounds.
In this case, the defendant in military criminal proceedings asked the judge to appoint an official defence counsel because he could not afford to pay a lawyer's fees. The judge refused on the grounds that, according to the Military Code of Justice, when defendants are not represented by a defence counsel the court will appoint a military counsel. The accused also challenged the excessively short period of five days allowed for filing the appeal and giving grounds.
The Constitutional Court decided unanimously that the possibility of assigning military counsel without any legal knowledge was a violation of an accused person's constitutional defence guarantees. It also decided that setting significantly shorter time limits for filing appeals in military criminal procedure than in ordinary criminal procedure constituted a violation of the constitutional principles of equality, access to the courts and guarantees of defence in criminal proceedings.