Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
Chad’s Instructor’s Manual (2006) states: “No sentence shall be passed on [a person] unless he is tried by an impartial, regularly constituted court.”
In 2001, in the Hissène Habré case, Chad’s Constitutional Council was called upon to decide on the constitutionality of Ordinance No. 004/PR/MJ/93 of 27 February 1993, which established a special criminal court for the trial of the former president Hissène Habré, his co-perpetrators and accomplices, as well as former agents and persons in charge of the Documentation and Security Directorate (DDS), and members of the public forces. The Constitutional Council stated:
1. Regarding the violation of articles 147 and 148 of the Constitution
… [T]he civil parties argue that article 147 [of the Constitution], which provides for a court system … , was violated by Ordinance No. 004/PR/MJ/93 of 27 February 1993; as well as article 148 [of the Constitution], which states that: “In Chad, the Judiciary Power is exercised by the Supreme Court, the Courts of Appeal, the Tribunals and Justices of the Peace [Justices de Paix]. It is the guardian of liberties … and ensures the respect for fundamental rights.” … [I]ndeed, the Constitution of 31 March 1996 acknowledges, through the above-mentioned articles, that only the Supreme Court, Courts of Appeal, Tribunals and Justices of the Peace, which were expressly mentioned in article 148, have Judiciary Power. Therefore, no judicial body which is not based on such provision can be part of the Judiciary Power … Article 148 of the Constitution, as amended by Law No. 004/PR/98 of 28 May 1998 … , states even more clearly that: “In Chad, justice is rendered by an order from a judicial body, including: the Supreme Court, Courts of Appeal, Criminal Courts, Tribunals of First Instance, Labour Tribunals, Commercial Tribunals and Justices of the Peace” … Neither the Constitution of 31 March 1996 nor Law No. 004/PR/MJ/98 of 28 May 1998 makes any reference to [the existence] of a Special Criminal Court in Chad’s judicial system … Thus, Ordinance No. 004/PR/MJ/93 of 27 February 1993 is unconstitutional.
2. Regarding the violation of article 239 of the Constitution
… [T]he civil parties argue that the fact that Ordinance No. 004/PR/MJ/93 of 27 February 1993 remains in force is a violation of article 239 of the Constitution, as it should have been … repealed by the promulgation of the Constitution of 31 March 1996. In this regard, article 239 of the Constitution provides that: “The present Constitution abrogates, since its promulgation, the Charter of the Transition and all previous provisions contrary [to the provisions of this Constitution]”. Thus, the Special Criminal Court established by the National Charter of 28 February 1991 is automatically abrogated since the promulgation of the Constitution of 31 March 1996 … In view of the above, it must be said that Ordinance No. 004/PR/MJ/93 of 27 February 1993 is unconstitutional, and that it shall be removed … from the legal system.