A/HRC/28/32 The issue is not whether the respondent should be prosecuted at all, but whether the interest in having him tried in the military justice system is proportional to his loss of rights when tried in that system. …. In the absence of such a justification, we can only conclude that the effects of prosecuting the respondent in the military justice system are disproportionate. As a result, the respondent’s prosecution is a breach of the respondent’s right not to be deprived of his liberty, except in accordance with the principles of fundamental justice contrary to section 7 of the Charter. 46. The Court went on to say that: We should not be taken as saying that all prosecutions of civilians before the military courts necessarily result in a breach of their rights under s. 7 of the Charter. Each case stands to be decided on its own facts. We would say however that where a civilian makes a s. 7 argument based on the loss of procedural rights before the military courts, the onus shifts to the prosecution to justify proceeding before the military courts as opposed to the civilian criminal courts. 47. Mr. Fidell questioned whether negative experiences in some States with trials of civilians in military courts should preclude the trial of civilians in military courts under special circumstances. If a State required a nexus or service connection for military jurisdiction, he asked how it should apply to the prosecution of civilians in military courts. He also asked whether jury membership and the right to counsel should be different when a civilian is tried in military courts. 48. Said Benarbia, Director of the Middle East and North Africa Programme at the International Commissioner of Jurists, addressed the use of military courts in the Middle East and North Africa region. He stated that, in a number of States, military courts had broad jurisdiction to try civilians as well as to try allegations of human rights violations by military and security-related personnel. Military courts had often been a source of impunity because they had been used to shield military and security personnel from accountability for human rights violations. He referred to examples from Egypt, Tunisia and Morocco. In Egypt, under article 5 of the Military Justice Law No. 25 of 1966, military courts had jurisdiction over all crimes where one party, whether the victim or the defendant, was a member of the military. Juveniles could also be tried before military courts under article 8. Furthermore, article 6 of the Military Justice Law authorized the President during a state of emergency to refer any case to a military court. 49. The Constitutions of 2012 and 2014 both perpetuated military jurisdiction. The 2014 Constitution permitted the trial of civilians before military courts for crimes “that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties”. A new decree by the President of Egypt, Law No. 136 of 27 October 2014 “on securing and protecting public and vital facilities”, further extended the jurisdiction of military courts to try civilians. The law placed all cases involving attacks against “public and vital facilities” under military jurisdiction for the next two years. 50. In Tunisia, following the toppling of President Ben Ali, Law No. 2011-69 amending the Code of Military Justice significantly expanded the scope of the jurisdiction of military tribunals. Article 8 of the Code provides that military tribunals have jurisdiction over military personnel, students at military schools, retired officers when they are called to serve, civilian employees of the army in times of war or during a state of war or when the army or armed force is in an area where a state of emergency is declared, prisoners of war and civilians as authors or co-authors of offences. 11