INCAL JUDGMENT OF 9 JUNE 1998
13
5. Law no. 1602 of 4 July 1972 on the Supreme Military Administrative
Court
31. Under section 22 of Law no. 1602 the First Division of the Supreme
Military Administrative Court has jurisdiction to hear applications for
judicial review and claims for damages based on disputes relating to the
personal status of officers, particularly those concerning their promotion and
professional advancement.
C. Case-law
1. The Supreme Military Administrative Court
32. The Government produced several judgments of the First Division of
the Supreme Military Administrative Court setting aside decisions
concerning the appointment and promotion of military judges or
disciplinary sanctions applied to them. These were the judgments of 31 May
1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December
1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997
(no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62).
It appears from these judgments that in setting aside the transfer
decisions concerned, the First Division gave as its grounds either lack of
consent on the part of the person concerned or abuse of the military
authorities’ discretionary power. In connection with assessment reports,
failure to state reasons or a lack of objectivity on the part of the immediate
superior was taken into account. Lastly, in connection with a disciplinary
sanction, against which in principle no appeal lies, the First Division held
that the acts of which the person concerned stood accused had been
incorrectly established and that the sanction was accordingly null and void.
2. The National Security Courts
33. The Government also submitted a number of judgments rendered by
National Security Courts relevant to the impartiality of military judges
sitting as members of such courts. These were the judgments of
12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38),
7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996
(no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141),
9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September
1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996
(no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996
(no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997
(no. 1997/393).
Most of these decisions declared the accused guilty but also contained
separate opinions by military judges adopting a dissenting opinion with