اليات القضاء العسكري وضمانات المتهم في المحاكمة العادلة دراسة مقارنة بين القانون الليبي والقانون التونسي

The current research scrutinises the mechanisms of military jurisdiction and the defendant’s guarantees for a fair trial in the legislations of Libya and Tunisia. The research is an attempt to arrive at a precise characterisation of the military jurisdiction and to elucidate its features in terms of the mechanisms of the judiciary composition, and the legal and constitutional guarantees given to the accused. This will contribute to ensuring judicial impartiality and protecting the defendants. The problem of the study lies in the question of deficiency of literature on the mechanisms of the military jurisdiction and its special and exceptional applications, several research questions surface about the concepts through which we can understand and define the rights of the defendants in general, and their legal rights in particular. Concerning the constitutional protection of the accused before military courts, one might ask a very imperative research question, what are the future mechanisms that must be provided before the military courts in terms of legal and constitutional guarantees? Accordingly, the problem raised by the researcher mainly revolves around the extent of the guarantees enjoyed by the defendant before the military jurisdiction in the light of Law No. (1) of 1999 and its amendments, specifically the issuance of the Libyan Military Criminal Procedure Law, the Tunisian law of 1957, and its amendments in 2011, and their significance in safeguarding the right of the defendants for a fair trial. To address the problematic of this research and achieve its objectives, the study follows comparative and historical approaches in its methodology to trace the geneses of the military jurisdiction in both Libya and Tunisia, in addition, the study follows the analytical and descriptive methods to scrutinise the theoretical data and compare it with other military criminal legislation with special reference to the Libyan legislation to elucidate the role of the legislator accordingly. The study concluded that ensuring the mechanisms of the military jurisdiction requires a series of definite and proactive procedures to guarantee the constitutionality of the military jurisdiction and achieve the legality of military courts and prosecutions, in conformity with the constitution and the law. These aspects shall guarantee the military jurisdiction’s objectivity and impartiality in resolving disputes in courts and ensuring a fair trial for defendants. Therefore, this study recommends revisiting the military justice legal framework and instituting mechanisms that contribute to developing the military jurisdiction in line with the international laws.