A legal approach: why judicial investigators cannot be recused
In February 2021, after the Beirut port blast file was taken from Judge Fadi Sawan, Judge Peter Germanos, former Government Commissioner to the Military Court, published a short legal analysis of the recusal of judicial investigators.
Germanos starts from the premise that the Judicial Council is an exceptional jurisdiction which, under Article 356 of the Code of Criminal Procedure, hears the gravest crimes against state security. The judicial investigator is appointed through a special mechanism, by agreement of the Ministry of Justice and the Higher Judicial Council, so ordinary courts may not recuse or remove him, under the rule of parallel forms. In his view, the Court of Cassation erred when it applied Article 340, a general provision, to a special jurisdiction, and treated the judicial investigator as if he were an ordinary investigating judge.
A complementary reading
This approach is reinforced by a settled rule of interpretation: exceptions are construed strictly and cannot be extended by analogy. Article 357 of the Code of Criminal Procedure, as enacted by Law 328/2001, expressly provides for the withdrawal and recusal of members of the Judicial Council and for alternate judges to replace them, yet says nothing of the judicial investigator, whom Article 360 has appointed by the Minister of Justice with the approval of the Higher Judicial Council. Silence in an exceptional regime is not filled by general rules. Article 340, moreover, presupposes another authority of the same rank to receive the case, and there is no parallel authority for a judicial investigator named by ministerial decision. Finally, opening recusal to the parties threatens the independence and continuity of investigations into crimes against state security.
Read the full article on Jbeil Daily News
Also reported by Lebanon Debate, 20 February 2021 (in Arabic).