Abstract
This survey examines the jurisprudence for the year 2013 for international human rights obligations of nations for their criminal justice systems. This jurisprudence comes from several major human rights treaties. The judicial bodies for this jurisprudence include the U.N. human rights treaty bodies that monitor implementation of the human rights treaties through an individual petition process; thus, the 2013 jurisprudence includes decisions from the Human Rights Committee (HRC) for the International Covenant on Civil and Political Rights (ICCPR), Committee Against Torture (CmAT) for the Convention against Torture (CAT), and the Committee on the Elimination of Racial Discrimination (CmERD) for the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
Other judicial bodies include the regional regimes that seek compliance with human rights norms. For 2013, jurisprudence is from the European Court of Human Rights (ECtHR), which monitors member States’ fulfillment with the European Convention for the Protection of Human Rights (ECHR). Also included are the Inter-American Commission on Human Rights (IACmHR), which investigates individual petitions that allege violations of the American Convention on Human Rights (ACHR) and the American Declaration of the Rights and Duties of Man (ADRDM), and the Inter-American Court of Human Rights (IACtHR), which interprets and applies the ACHR in its judgments that are binding on those States that have accepted this treaty. Additionally, the African Commission on Human and Peoples’ Rights (ACmHPR) considers violations of the African Charter on Human and Peoples’ Rights (Banjul Charter).
Final judgments or decisions on the merits in cases related to criminal justice, available in English, predominate in this review. Of the 2,086 judgments by the Grand Chamber and Chamber panels of the ECtHR in 2013 selected for consideration for this review are those that were selected for publication in the Court’s official Case Reports, also considered were those judgments classified as being of Level 1 or of high importance, that are not included in the Case Reports category; ECHR, 2013. From these two sources, 21 judgments from 2013 from the ECtHR are substantially related to national criminal justice systems. There were 17 relevant cases decided in 2013 by the HRC. The CmERD decided one and the CmAT decided two such cases. The IACtHR reached six final relevant judgments, and the IACmHR provided three reports used for this review. The ACmHPR also supplied three decisions. The discussion of this jurisprudence is organized by the order of the processes of a criminal justice system, beginning with substantive criminal law issues, followed by concerns in criminal investigation, pretrial and trial rights, sentencing, appeals, and culminating in the examination of the rights of crime victims. This overview concludes by highlighting some developments in this 2013 jurisprudence.
Substantive Limitations on the Criminal Law
The 2013 jurisprudence dealt with criminal sanctions on the rights of expression and assembly that may be imposed where the interference is prescribed by law, prompted by a legitimate aim delineated in the human rights treaty, and is necessary in a democratic society.
Right of Expression
Dealing with a threshold of incitement of racial hatred for intervention by the criminal law, the CmERD found in TBB-Turkish Union in Berlin/Brandenburg v. Germany (2013) that the State party failed to provide protection under its Criminal Code for its decision to not investigate the statements published in the German cultural journal Lettre International in an interview with the former Finance Senator of the Berlin Senate and current member of the Board of Directors of the German Central Bank, who expressed himself in a derogatory and discriminatory way about social “lower classes,” referring to individuals of Turkish heritage which are “not productive” and would have to “disappear over time” in order to create a city of the “elite” (¶ 2.1). The German Criminal Code criminalizes any manner of expression that is capable of disturbing the public peace by incitement to hatred against segments of the population or calling for violent or arbitrary measures against them. But the CmERD found it insufficient merely to declare acts of racial discrimination punishable on paper rather these laws must also be effectively implemented by competent national tribunals and other State institutions. By concentrating on the fact that the statements did not amount to incitement of racial hatred and were not capable of disturbing the public peace, the State party failed in its duty to carry out an effective investigation into whether the statements amounted to dissemination of ideas based upon racial superiority or hatred. The CmERD considered that the criterion of disturbance of the public peace, in the evaluation by domestic authorities as to whether the statements reach the threshold of dissemination of such ideas, is not supported by the CERD. In an individual opinion, a CmERD member dissented stating that the CERD leaves States parties with discretion to determine when criminal prosecution would best serve its goals.
The dismissal of the threshold of incitement of the CmERD mentioned previously should be compared with the approach of the HRC in A.W.P. v. Denmark (2013). Here, three members of the Danish parliament and the European Parliament expressed their views in newspaper articles about allowing a female parliamentary candidate to speak in Parliament wearing her Muslim scarf and compared Islam with Nazism. The HRC observed that the author failed to establish that those specific statements had specific consequences for him or that the specific consequences of the statements were imminent and would personally affect him. Thus, the author failed to demonstrate that he was a victim for purposes of the ICCPR.
Exercise of Assembly
Several cases dealt with issues of assembly for demonstrations and leafleting. In Vyerentsov v. Ukraine (2013), the applicant, after notifying the Lviv City Mayor that he would hold demonstrations over several months to raise awareness about corruption in the prosecution service, organized a peaceful demonstration. The following day, with a complaint by the local council, the administrative court prohibited the holding of further demonstrations. The applicant was invited to the district police station, where he was accused of having breached the procedure for organizing and holding a demonstration. The next day he was brought before the district court, which found him guilty of the offenses charged and sentenced him to 3 days of administrative detention. The ECtHR observed that the conviction had been imposed in the absence of domestic legislation establishing a procedure on demonstrations, since there had been no clear procedures in Ukraine since the end of the Soviet Union.
According to the HRC in Protsko v. Belarus (2013), the seizure of the leaflets and the fine imposed on one author and the five days’ administrative detention to which the other author was sentenced for distributing leaflets about two planned peaceful public events to commemorate those who had died in the Chernobyl accident constituted violations of the authors’ right to impart information protected under Article 19(2) of the ICCPR. Here the domestic court failed to demonstrate in specific and individualized fashion the precise nature of the perceived threat, and the necessity and proportionality of the specific action taken by establishing a direct and immediate connection between the expression and the threat.
According to the HRC in Sekerko v. Belarus (2012), the denial of the required authorization of mass events that the author had planned with a group of Gomel city residents constituted a violation of his rights under the ICCPR Article 21. The author was denied authorization to hold mass events as he had failed to provide all necessary information, as required by the domestic Law on Mass Events, including the measures to be taken to guarantee security and medical care to the participants of the events and to ensure that the area remained clean during and after the gathering. The State party failed to demonstrate that the denial of authorization was necessary for one of the legitimate purposes of Article 21 of the ICCPR and that these purposes could only be achieved by the denial of the planned mass events.
According to the HRC in Alekseev v. Russia (2013), the authorities’ restriction of the author’s right to peaceful assembly was not permissible under Article 21 of the ICCPR. The permission for the author’s proposed picket in front of the Iranian Embassy in Moscow was denied on the sole ground that the subject it addressed—advocacy of respect for the human rights of persons of sexual minorities—would provoke a negative reaction that could lead to violations of public order. The denial had nothing to do with the chosen location, date, time, duration, or manner of the proposed public assembly. The State party did not support its claim that a negative reaction to the proposed picket would be violent or that the police would be unable to prevent such violence. Thus, the obligation of the State party was to protect the author in the exercise of his rights and not to contribute to suppressing those rights.
By breaking up a commemoration to honor the victims of the Stalinist repressions in Soviet Russia, the HRC found that the authorities in Kovalenko v. Belarus (2013) had violated the author’s rights to freedom of assembly under Article 21 and to freedom of expression under Article 19(2) of the ICCPR, since he was taken away from the commemoration and subsequently fined 620,000 Belarusian rubles for the unauthorized picket. The State party did not advance any argument for why the restrictions were necessary and what dangers would have been created by publicly expressing a negative attitude to the Stalinist repressions in Soviet Russia.
Seizure of Person
The 2013 jurisprudence on the deprivation of individual liberty involved issues of excessive force and its consequences. In Gutsanovi v. Bulgaria (2013), the overly forceful nature of the police operation to arrest the politician at his home in the presence of his family resulted in degrading treatment in violation of ECHR Article 3, according to the ECtHR. The lack of prior judicial review of the necessity and lawfulness of the search had left the planning of the operation entirely at the discretion of the police and had not enabled the rights of the wife and daughters to be considered. The law enforcement agencies had not contemplated any alternative means of conducting the operation at the applicants’ home, such as staging the operation at a different time of day or even deploying a different type of officer. The fact that the police operation took place in the early morning and involved special agents wearing masks had served to heighten the feelings of fear experienced by the applicants.
In Bendib v. Algeria (2013) according to the CmAT, when Hammouche was returning home from the mosque at the end of evening prayers, several armed men driving a vehicle and wearing civilian clothing arrested him. He was taken to a military barracks of the Intelligence and Security Department (DRS; the army’s intelligence service in charge of counterterrorism operations). He was released the following day. Three days after his initial arrest, Hammouche was arrested by DRS agents and driven to the Territorial Centre for Research and Investigation where, according to the testimony of his fellow prisoners, he was tortured. Agents of the State party visited Hammouche’s home in order to inform the family that he had died in police custody. Several hours later, the victim’s body was returned to his family, who detected an injury to his head and bruises on his hands and feet. These injuries suggested that grievous bodily harm, which must be considered to have caused severe pain and suffering, was intentionally inflicted during the detention by officials of the State party with a view to obtaining a confession or to punishing or intimidating him because of his purported adherence to Islamist ideology. In the absence of any substantive refutation by the State party, due weight was given to the author’s allegations and that the submitted facts constituted acts of torture. Hammouche was placed in incommunicado detention and was not given the possibility of contacting his family, a defense lawyer, or a doctor. The apparent lack of any mechanism to provide oversight of the Territorial Centre for Research and Investigation exposed him to an increased risk of being subjected to torture and deprived him of any possible remedy. This contradicted the obligation under CAT Article 2 to take effective measures to prevent torture. The HRC urged the State party to provide for the establishment of a national register of prisoners and to guarantee the right to have access to a doctor and to communicate with family, the failure to do so violated ICCPR Article 11.
In Zimbabwe Human Rights NGO Forum v. Zimbabwe (2013), the four deceased persons were killed by agents of the Respondent State in circumstances amounting to summary executions or extrajudicial killings through an excessive use of force. The cases involved the use of firearms by law enforcement agents. The ACmHPR found that the use of force by the law enforcement officials was not proportional and necessary. The deceased persons did not offer armed resistance or otherwise jeopardize the lives of others, and less extreme measures by the law enforcement officials could have been sufficient to restrain or apprehend the deceased persons. The principle is that life should not be taken by the State, and any action that seeks to fall in the narrow confines of exceptions to this rule requires strong justification. Furthermore, the Respondent State failed to prove that the deceased persons were suspected criminals. Though the death of one of the victims was not directly imputable to the Respondent State, as it was a result of the private act of a member of its national army, the Respondent State failed to properly respond to the death of this victim because of the lack of due diligence and the incapacity to satisfactorily compensate the close relations of the deceased in as far as the current laws of the Respondent State obtain contrary to the spirit of Article 1 of the Banjul Charter.
In Egyptian Initiative for Personal Rights v. Egypt (2013), protesters and the journalists covering a 2005 political demonstration were met by a large group of riot police and National Democratic Party (NDP) supporters. The State failure to protect the victims from assault was found by ACmHPR to have violated their rights under the Banjul Charter. There was differential treatment that amounted to discrimination in violation of the Charter, where the main reason for the assaults by the authorities was that they are women and journalists as evidenced by the sexual nature of the violations. The sexual molestation was found to be inhuman and degrading. The victims were deprived of an effective and impartial investigation. The victims were physically and emotionally traumatized as a result of sexual violence and assaults on their person.
During the Pinochet regime, Garcia Lucero was subjected to forced disappearance, incarceration, and physical and psychological torture. As a result of the physical assaults, he was disfigured and has been disabled since. After being expelled to the United Kingdom, he received refugee status. Though the mistreatment took place before Chile ratified the ACHR, the IACtHR in García Lucero v. Chile (2013) found that the violations of the right to access justice are independent from the initial mistreatment. Thus, procedural violations were found in the lack of investigation, sanction, and compensation. The obligation to investigate the acts of torture in this case has implications for the many other victims of the Pinochet regime.
The IACtHR ruled in Gutiérrez v. Argentina (2013) that State officials were responsible for the 1994 killing of Gutiérrez, the then Assistant Commissioner of the Buenos Aires Provincial Police, and were guilty of obstruction of justice in the subsequent investigation of the assassination. Gutiérrez had been investigating a smuggling operation in which government officials were suspected of assisting in avoiding customs. Although the IACmHR had referred to institutional structural deficiencies in the provincial system of justice and in the functioning of the police forces involved that facilitated the irregularities that have continued, the IACtHR chose not to rule on the systemic issues, finding no relation to the specific facts involved.
According to the ECtHR in McCaughey v. UK (2013), the extensive delays in the investigation of the killings by security forces in 1990 in Northern Ireland was not compatible with the State’s obligation under ECHR Article 2 to ensure the effectiveness of investigations into suspicious deaths. The investigative process, however, organized under national law, must be commenced promptly. The fact that it was necessary to postpone the applicants’ inquest so frequently and for such long periods over a 22-year period pending clarifying judicial review actions demonstrated that the inquest process was not capable of providing the applicants with access to an effective investigation that would be conducted with due expedition.
By contrast, Maskhadov v. Russia (2013) showed an investigation that complied with the requirements of the procedural aspect of the right to life. Here, the body of an accused terrorist, accused of several terrorist offenses, notably for masterminding the 2004 Beslan school terrorist attack, was found in an underground shelter by Russian security forces. An investigation found that Maskhadov had died from gunshot wounds to the head fired accidentally by an armed insurgent, when the security forces had blown up the underground shelter’s entrance. The ECtHR considered that the investigation, launched immediately after the discovery of the body, had lasted only about 4 months and had been concluded promptly with a decision reaching specific conclusions on the factual circumstances of Maskhadov’s death. It had been conducted by the Prosecutor General’s Office, an authority institutionally independent from the officials in charge of the security operation. Additionally, referring to a 2003 domestic decree governing the burial of terrorists and domestic legislation, the domestic authorities had notified the applicants that the bodies of terrorists who had died as a result of their terrorist actions were not to be returned to their families and that the location of burial could not be disclosed. The ECtHR noted that the refusal to return the bodies had clearly deprived the applicants of an opportunity to organize and take part in the burial of their relatives and to know the location of the gravesite for potential visits, thus constituting an interference with the applicants’ private and family life. See also Sabanchiyeva v. Russia (2013) where the automatic application of the statutory ban on returning the bodies of terrorists to their families for burial was ruled to be a violation of ECHR Article 8 and its requirement for respect for family and private life.
Interrogations
The issue of excessive force used to obtain a confession was observed in three cases in the 2013 jurisprudence. The applicants in Bouyid v. Belgium (2013) are two brothers, one of whom was a minor at the time they were questioned separately by police officers about unrelated incidents. Both alleged being slapped once on the face by the officers. The ECtHR observed that the slaps on both occasions were isolated incidents, inflicted unthinkingly by police officers who had lost their temper because of the brothers’ disrespectful behavior and not for the purpose of extracting confessions. Such acts could not be regarded as generating a degree of humiliation sufficient to find a breach of Article 3.
Despite the medical certificate evidencing injuries on the body of the author’s son, according to the HRC in Zhuk v. Belarus (2013) the HRC found a violation of the ICCPR where the State party did not present any information to demonstrate that it had conducted any investigation into the ill-treatment allegations of the author’s son where the latter was subjected by police to physical and psychological pressure with the purpose of eliciting a confession of guilt and that his confession served as a basis for his conviction.
With the uncontested allegations in Evloev v. Kazakhstan (2013), the CmAT noted the detailed description of the treatment that the complainant was subjected to while in police custody. Here four police officers had beaten him, hit him in the area of his head, and suffocated him with a gas mask. The forensic medical report made a day later had documented the physical injuries inflicted on him to force him to confess his guilt to multiple crimes. The CmAT considered that the treatment can be described as severe pain and suffering inflicted deliberately by officials with a view to obtaining a forced confession, thus constituted torture within the meaning of CAT Article 1.
Detention and Pretrial Rights
Concerns regarding extradition, independent judicial authority, length of detention, bail, and conditions of detention were raised in these cases for 2013.
Extradition
In Aswat v. UK (2013), the uncertainty over conditions of detention in the event of extradition to the United States of a suspected terrorist suffering from serious mental disorder led the ECtHR to find that such a transfer would constitute a violation. The ECtHR accepted that if convicted the applicant would have access to mental health services regardless of which institution he was detained. However, the disorder suffered by Aswat was of such severity to have earlier necessitated his transfer within the United Kingdom from a prison to a high-security psychiatric hospital for his own health and safety. Further, there was no guarantee that if convicted in the United States, he would not be detained in a maximum-security facility, such as ADX Florence, where he would be exposed to a highly restrictive regime with long periods of social isolation that could exacerbate his condition of paranoid schizophrenia.
Independent Judicial Authority
In Sevostyanov v. Russia (2013), the HRC observed that extending the pretrial detention pursuant to a phone call from the investigator did not comply with the ICCPR requirement for a court decision for such detention.
Several cases presented scenarios a complete lack of effort to bring the arrestee to judicial authority. In Zerrougui v. Algeria (2013), the brother of the author was arrested without a warrant by police officers wearing the uniform of the provincial security services and without being informed of the reasons for the arrest. The brother was not brought before a judge, so that he could challenge the legality of his detention. No official information was given to the author regarding the brother’s fate. The HRC found there were violations of the right to life, to the ban on torture and cruel or inhuman treatment, to liberty and security, to respect for the inherent dignity of the human person, to recognition before the law, and to an effective remedy. Further the domestic legislation, which implements the Charter for Peace and National Reconciliation and bars any judicial action against members of the Algerian defense and security services for the events that took place in the country from 1993 to 1998, was incompatible with the ICCPR. See also Azouz v. Algeria (2013), Faraoun v. Algeria (2013), and Larbi v. Algeria (2013).
In Sedhai v. Nepal (2013), the author’s husband was arrested in a teashop by four or five men in plain clothes. The National Human Rights Commission had conducted an investigation and concluded that Sedhai had been arrested and then detained in army barracks. The HRC observed, that in view of the prolonged disappearance, Sedhai might be deceased. The acts of torture upon the author, his incommunicado detention, and enforced disappearance, as well as his conditions of detention, showed violations of Article 7 of the ICCPR. Considering the impact on the family this also revealed a violation of Article 7. The family had repeatedly contacted the competent authorities regarding his disappearance, including judicial authorities, all their efforts were unavailing, and the State party failed to conduct a thorough and effective investigation into Sedhai’s disappearance. Furthermore, the domestic procedures that remain unimplemented, such as the Truth and Reconciliation Commission as mandated by the 2007 Constitution of Nepal and the 2006 Comprehensive Peace Agreement, were insufficient to constitute an effective remedy.
In Al Khazmi v. Libya (2013), Al Khazmi was arrested at his workplace by members of the internal security forces. The family has never received any official confirmation of the place of detention of Al Khazmi. The HRC recalled that, in cases of enforced disappearance, the act of deprivation of liberty, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate of the disappeared person, denies the person the protection of the law and places the person’s life at serious and constant risk, for which the State is accountable. In addition to the victim’s enforced disappearance, the HRC has took note that Al Khazmi was last seen alive 12 days after the arrest, after a severe incident of torture, and his death was reported to his family by the prison authorities 2 days after this. In accordance with HRC jurisprudence, the burden of proof cannot rest solely with the authors of the communication, especially when the State party is often in sole possession of the relevant information. Here a report of the Prosecutor’s Office provided that an autopsy report concluded that Al Khazmi’s death was the consequence of multiple violent blows to his body with a blunt object. Despite this report, the local authorities refused to open a criminal case. Thus, the State party violated Al Khazmi’s right to life, and the incommunicado detention and lethal torture violated the ICCPR.
In a second case from Libya in Il Khwildy v. Libya (2013), the HRC found the ICCPR was violated as Il Khwildy was subjected twice to enforced disappearance. His first disappearance was for a 5-year period, when he was held in a secret location by the State party, which had refused to disclose his whereabouts and held him incommunicado, rejecting any judicial scrutiny of the detention. During his second disappearance, he was held for 20 months without any protection from the legal system or contact with the outside world.
Length of Detention
A delay in being brought before a judge can result in a violation. In Gutsanovi v. Bulgaria (2013), the ECtHR ruled that Gutsanovi had not been brought promptly before a judge in violation of ECHR Article 5 where he was in police custody for 3 days, 5 hr, and 30 min, though he had been assisted by a lawyer from the beginning of his detention. Gutsanov had been psychologically vulnerable in the early days following his arrest. According to the HRC in Pichugina v. Belarus (2013), there was a violation because of the 10 days, from the time of her apprehension until her release, when the arrestee was never brought before a judge. The HRC recalled that it has recommended on numerous occasions that the period of police custody before a detained person is brought before a judge should not exceed 48 hr. The only explanation provided by the State party for failing to take her before a judge was that she did not initiate a complaint. The inactivity of a detained person is not a valid reason to delay bringing her before a judge. See also Zhuk v. Belarus (2013), where the HRC found a violation for detention of 3 months and 5 days before being taken to a judge.
Bail
The issue of bail forfeiture following an acquittal was raised in Lavrechov v. Czech Republic (2013). Here a Russian national was charged in the Czech Republic with insider trading and fraud and taken into pretrial custody. He was released on bail subject to the payment of the equivalent of €400,000 as security. The trial was subsequently conducted in his absence, as he had left the country and had failed to maintain contact with the trial court. Although the applicant was ultimately acquitted of the offenses charged, the security was forfeited as he had failed to respect the conditions of his bail. The fact that the applicant was later acquitted did not mean that his prosecution had been improper. The ECtHR viewed the purpose of bail for ensuring the proper conduct of criminal proceedings and that the accused appears at the hearing.
Conditions for Detention
Considering the impact of pretrial detention on a defendant, the HRC in V.B. v. Czech Republic (2013) did not question the information related to the situation of the Roma community in the Czech Republic. Yet, it did not find the author was a victim of discrimination on the basis of her ethnic origin by the failure of the State to provide, under its legislation, compensation for the loss of her security benefit for the month of detention and for the lost opportunity to find a job resulting from her pretrial remand to confinement.
Issues of Trial Rights
The jurisprudence on trial rights included issues on the presumption of innocence and various fair trial procedures.
Presumption of Innocence
In Mulosmani v. Albania (2013), a national political party chair in a broadcast accused a police officer of having committed an assassination for which the officer was later placed on trial and convicted. The district court and the prosecutor expressly noted that the party chair had mentioned the officer’s name as being the perpetrator of the crime. The ECtHR observed that a political party chair was not the same as a public official with public authority, thus there was no violation of the presumption of innocence protected by Article 6(2).
In the ECtHR Grand Chamber judgment in the case of Allen v. UK (2013), no violation of the presumption of innocence under ECHR Article 6(2) was found, for the refusal to grant compensation, following the quashing of her conviction for manslaughter of her 4-month-old son. The conviction had been based on expert medical evidence showing that her son’s injuries were consistent with “shaken baby syndrome.” In her domestic appeal, the conviction was quashed on the grounds that new evidence suggested that the injuries had another source. Allen was released from prison, having served her sentence. Noting that the acquittal decision did carry the implication that there was no case against Allen, the domestic Court of Appeal found the denial of compensation did not satisfy the test for “miscarriage of justice.” The ECtHR Grand Chamber observed that the refusal of compensation did not per se violate the applicant’s right to be presumed innocent, since under Article 6(2) there is no guarantee for a person acquitted of a criminal offense that there be a right to compensation. The United Kingdom is not party to Protocol No. 7, thus its Article 3, specifically requiring compensation, was not applicable.
Where several State officials made public statements about her son’s guilt before his conviction, the mass media made public the materials of the preliminary investigation prior to the consideration of his case by the court, the son was kept in a metal cage throughout the court proceedings, and the photographs of him in the cage were published in the local media, the HRC considered that the presumption of innocence guaranteed under Article 14(2) of the ICCPR had been violated in Zhuk v. Belarus (2013).
Fair Trial Procedures
Considering the concerns of the right to a public hearing, Nikolova v. Bulgaria (2012) involved a national police investigator. Following the receipt of information alleging bribery and corruption by police officials, disciplinary proceedings were started against the investigator and she was dismissed. She appealed her dismissal, but pursuant to a request from the Ministry of the Interior, the case file was classified as secret. The ECtHR found that the appellate court had examined the case in camera, the judgments were not made public and had not been available at the court registry, and the investigator was unable to obtain a copy of the judgment. The file had not been declassified more than five years after the final judgment of the domestic court. The restrictions on publication of the judgment violated the right to a public hearing since they resulted from the automatic classification of the entire file as secret, with no assessment of the necessity and proportionality of such a measure in this case.
Delays in the proceedings can result in violations should there not be a domestic remedy. In Vlad v. Romania (2013), the applicants complained of the length of civil and criminal proceedings in which they had been involved before the domestic courts. The ECtHR found a lack of an effective domestic remedy in respect of those delays. The Government did not provide a single example of domestic case law demonstrating an effective remedy for significantly expediting the proceedings or awarding appropriate redress. Also, in Haregewoin Gabre-Selassie v. Ethiopia (2013), following the overthrow of the Dergue regime in Ethiopia in 1991, the Dergue officials surrendered to the new government. They were arrested and detained on account of collective responsibility for policies or abuses rather than on an account of individual responsibility for particular crimes. They have been in detention since. The delay in rendering a judgment was considered not to be due to the lack of action of the defendants, but to the failure of the State to diligently proceed with the cases. The delay was due in part to the ambitious nature of the transitional justice pursued by Ethiopia, which competed for judicial resources. The ACmPHR found that the violations of the rights of the Dergue officials to be tried within a reasonable time and to be presumed innocent under Article 7(1) of the Banjul Charter.
Compliance with domestic law is required to ensure a competent court. However, this was not found in Yefimenko v. Russia (2013) by the ECtHR for the composition of the trial court where two of the judges had served more than once a year between 1998 and 2002 contravening the domestic Lay Judges Act. Thus, the detention on the basis of the trial judgment violated the ECHR Article 5(1). The independence of the court was sufficient according to the ECtHR in Maktouf´ v. Bosnia and Herzegovina (2013), though two of its members had been appointed by the Office of the High Representative in Bosnia and Herzegovina for a renewable period of two years.
Availability of counsel is essential to fair process. In Zhirnov v. Russia (2013), the HRC noted that the author could not adequately prepare his defense in his capital murder trial and could not communicate with counsel of his own choosing, since he was mandated to review the entire case file, consisting of 19 volumes (over 4,000 pages), in 37 days, did not manage to review all case materials, and was not allowed to familiarize himself with certain case file materials in the presence of his attorney. In Zhuk v. Belarus (2013), where the author’s son had only been allowed to see a lawyer for 5 min, was effectively deprived of legal assistance during the initial phases of the investigative proceedings, and was forced to participate in investigative actions without legal advice, despite his requests for a lawyer, in violation of the domestic criminal proceedings, there was a violation of ICCPR Article 14(3) according to the HRC. In Khwildy v. Libya (2013), the HRC noted that Il Khwildy was sentenced to two years of prison by a special tribunal. Although a lawyer had been assigned to him, he was not able to meet with him outside the courtroom. All court hearings were held in secret. Based on the material before it and in the absence of information from the State party, the trial and sentencing of Il Khwildy disclosed to the HRC a violation of ICCPR Article 14.
Issues in Sentencing
Disproportionate sentences, retroactive changes in sentencing laws, life sentences, and death sentences were the focus of decisions in 2013.
Disproportionate Sentences
The complaints in Willcox v. UK (2013) about enforcement in the United Kingdom, pursuant to a prisoner transfer agreement, of lengthy sentences imposed by Thai courts were ill-founded, though it was contended that the sentences were 4–5 times longer than the sentences usually received for the same offenses in the United Kingdom. The ECtHR noted that gross disproportionality was a strict test, applicable only in exceptional circumstances. Here there was no suggestion in that the Thai sentences were outside the range of sentences generally imposed in Thailand for similar offenses. Further, they fell within the allowed maximum that applies to equivalent convictions in the United Kingdom. It was relevant that Thailand faced a serious drug problem and punished drug offenses severely. The applicants had been advised of the length of the sentences they would have to serve in the United Kingdom and of their inability to challenge them.
Retroactive Changes in Sentencing Laws
Retroactive application of changes in sentencing was an issue in 2013. In Maktouf´ v. Bosnia and Herzegovina (2013), the applicants were convicted by the Court of Bosnia and Herzegovina of war crimes during the 1992–1995 war. This domestic war crimes tribunal was set up in 2005 as part of the termination strategy of the International Criminal Tribunal of the former Yugoslavia. The ECtHR found that this court had retroactively applied, in violation of the ECHR Article 7, a more stringent criminal law, the 2003 Criminal Code, than the law that had been applicable at the time of their commission of the offenses. In Del Río Prada v. Spain (2013), the applicant had been convicted of terrorist acts and received prison sentences totaling over 3,000 years. Pursuant to its procedures, to combine the sentences and set a maximum total term, the special domestic court had indicated that the applicant was to serve a maximum term of 30 years in prison. Prior to the detention attaining the maximum term, the national supreme court changed the method used to apply remissions of sentence for work done in detention, thus, delaying the date of her release by almost 9 years. The ECtHR Grand Chamber found that she had served a longer term of imprisonment than she should have served under the domestic legal system as it had stood at the time of conviction. Thus, since the date of the delay in her release the detention had been unlawful.
Life Sentences
Life imprisonment schemes were challenged in 2013. In Vinter v. UK (2013), the ECtHR Grand Chamber observed that a life sentence, which could be reduced only where a prisoner was terminally ill or physically incapacitated, could not be regarded as reducible as is required under Article 3 of the ECHR. If the domestic law had afforded the possibility of review of a life sentence with a view to its commutation, remission, or termination, or the conditional release of the prisoner, then this could satisfy Article 3. In Mendoza v. Argentina (2013), the IACtHR ruled that life sentences against children constitute a violation of the ACHR. The domestic code indicated that those sentenced to life might obtain their release by judicial decision once they have served 20 years of their sentence. The IACtHR determined that this fixed term prevents the analysis of the specific circumstances of each child, which could eventually allow for early release at any time. Furthermore, imposing life sentences and reclusion for life for crimes committed as a juvenile did not account for the special principle that deprivation of liberty should be only as a last resort and for the shortest possible time, nor does it achieve for children the purpose of social reinsertion established in the ACHR.
Death Sentences
The cases for 2013 focused on concerns of fair capital trials and the execution process. The HRC decision in Zhuk v. Belarus (2013) has been noted several times in this review, as such it became subject to the principle of HRC jurisprudence that the imposition of a sentence of death upon conclusion of a trial that violates fair trial guarantees of the ICCPR constitutes a violation of the right to life.
In Spilg v. Botswana (2013), Kobedi had been convicted and sentenced to death for the murder of a sergeant of the police force of Botswana. The sergeant had died as a result of a bullet wound from Kobedi who had escaped from custody. The ACmHPR found that the compulsory requirement under Botswana legislation that a court must impose the death penalty for murder, which is absent extenuating circumstances, did not violate the anti-discriminatory and equal protection provisions of the Banjul Charter and that the legislation in Botswana did not in any way discriminate against the defendant as the death penalty would be imposed on anyone found guilty of murder without any extenuating circumstance. The ACmHPR rejected the contention that the delay in the execution of the sentence for over a decade since he was first arrested also exposed him to unnecessary cruel, inhuman, and degrading treatment. Here the ACmHPR took the view that the computation of time, as far as the delays in executing the sentence is concerned, will only start to run not from the time of arrest, but from the time of the passing of the death sentence. Kobedi was partly responsible for these delays and was exercising his rights to appeal. The ACmHPR found the execution of a death sentence by hanging may not be compatible with respect for the inherent dignity of the individual and the duty to minimize unnecessary suffering, however, though Kobedi suffered from a weak heart condition, there was an insufficient showing that the execution was without due attention to the weight of the condemned. Considering the claim of gross medical mismanagement by the medical staff treating the sergeant, the contention was too speculative that better medical care might have saved the deceased’s life, though it could be an extenuating circumstance. Though there is no definition of disproportionate sentences in the Banjul Charter, the ACmHPR observed that capital punishment for economic, nonviolent, or victimless offenses would be disproportionate, but such a sentence would not be disproportionate where the crime is intentional and involves the use of violence or firearms resulting in the death of another as in the instant case. A single violation of the Banjul Charter was found where the failure to give notice of the date of execution did not provide the defendant and his family members the important opportunity to have closure. Despite only this single violation being found, the ACmHPR urged the Respondent State to take urgent measures to abolish the death penalty.
The United States came in for criticism by the IACmHR in two reports. The report of Lackey v. US (2013) concerned 14 petitions filed on behalf of persons sentenced to death in six states of the United States (North Carolina, South Carolina, Georgia, Missouri, Texas, and Utah). These petitions alleged that the United States violated the rights protected under the ADRDM. All the petitions addressed in this report refer to persons sentenced to death in six states of the United States (North Carolina, South Carolina, Georgia, Missouri, Texas, and Utah) and thereafter executed. All had been beneficiaries of precautionary measures earlier requested by the IACmHR. A significant number of the petitions asserted that these persons did not have adequate legal representation, that some had a mental disability, and that they suffered from lengthy delays on death row. The petitions also claimed racial discrimination, discrimination based on sexual orientation, failure to comply with the obligation to notify the consular authorities, jury bias, obstacles to the introduction of new evidence, and restrictive laws governing the sentencing phase and the filing of appeals. The IACmHR declared the case admissible for purposes of examining the 14 petitions and will process them jointly in an ensuing merits phase case.
In Teleguz v. US (2013), the IACmHR concluded that the United States was responsible for the violation of the rights associated in the American Declaration with the criminal prosecution, trial, and death sentence of Teleguz. Should the State carry out the execution of Teleguz, it would be committing an irreparable violation of the basic right to life. The obligation of the United States under the Vienna Convention on Consular Relations to inform Teleguz of his right to consular notification and assistance constituted a fundamental component of due process standards to which he was entitled under the ADRDM. The failure to develop and present potentially exculpatory evidence of factual innocence in the case constituted inadequate representation by trial counsel. Testimony of participation in an unrelated murder, introduced as evidence of aggravation, where there were no records of any such murder having taken place resulted in a further violation to due process and a fair trial. The IACmHR found that the review procedures of the Antiterrorism and Effective Death Penalty Act (AEDPA), applied in Teleguz’s case, failed to meet the due process required in capital cases, as they permitted certain evidence to be rejected without an evidentiary hearing or without any substantive consideration such as the alleged suppression by the prosecution of evidence favorable to Teleguz and the fact that key portions of two of the prosecution witnesses’ testimony were allegedly fabricated. According to the IACmHR, the revelations during post-conviction proceedings regarding the testimony of the prosecution witnesses could very well raise a reasonable doubt as to guilt. The IACmHR observed that in Cullen v. Pinholster (2011) the U.S. Supreme Court had held that review under the AEDPA sets substantial limits on a federal court’s power to grant habeas relief to a state prisoner and that this review is limited to the record that was before the state court that adjudicated the claim on the merits. It was noted that the U.S. Supreme Court had ruled in this case, “[a]lthough state prisoners may sometimes submit new evidence in federal court; AEDPA’s statutory scheme is designed to strongly discourage them from doing so” (p. 1401). According to the IACmHR, the clemency process in Virginia does not appear to guarantee the minimal procedural protections where the process is almost completely unstructured, and decided on the sole authority and discretion of the Governor. The IACmHR noted that the due process requirement is not limited to conviction and post-conviction proceedings, but extends to the manner in which the penalty is applied, and thus where procedures to carry out executions by lethal injection in Virginia are both confidential and subject to arbitrary amendment, these were seen to violate this requirement. Given the violations of the ADRDM that the IACmHR established in the present case and in others involving the application of the death penalty, the IACmHR recommended to the United States that it adopt a moratorium on executions.
Rights on Appeal
The sufficiency of evidence and adequacy of appeal procedures were issues in 2013. The ACmHPR in Spilg v. Botswana (2013) observed that the direct evidence of the eyewitnesses at the trial to the effect that it was the defendant and nobody else who shot the deceased was uncontroverted in the domestic courts. Thus, the domestic court of appeal did not rely on the testimony of an unqualified forensic expert. In this light, the ACmHPR found that the domestic court of appeal did not misdirect itself by refusing to reopen the trial.
There was a post-conviction recantation by a witness in the criminal case involved in Sevostyanov v. Russia (2013). The HRC noted that under the ICCPR Article 14(5), though a higher tribunal must review a conviction and sentence, it is not required to proceed to a factual retrial; however, there is a duty to review substantively, on the basis of both sufficiency of evidence and of law, the conviction and sentence such that the procedure allows for due consideration of the nature of the case. In this case, despite the limitations imposed on the appellate court by the procedural law with regard to the examination of facts, it did examine the evidence reviewed by the first instance court, upheld that court’s conclusion that there was no reason to distrust the witness’s testimony, and concluded that guilt was well founded.
In Zahirović v. Croatia (2013), the applicant was found guilty of attempting to murder three people by shooting at them in a nightclub and was sentenced to 6 years’ imprisonment. The domestic supreme court upheld the judgment on appeal and increased Zahirović’s sentence to 8 years’ imprisonment. The ECtHR found that ECHR Article 6 was violated by the domestic supreme court in failing to communicate to him an opinion submitted by the State Attorney’s Office and to invite him to attend the public hearing on his appeal.
Crime Victims’ Rights—Obligation to Protect Rights
The jurisprudence for this topic focuses on the international duty of the State to prevent, investigate, and prosecute human rights violations by nongovernmental individuals. Thus, in Söderman v. Sweden (2013), the ECtHR Grand Chamber reversed an earlier Chamber ruling by finding that the domestic law had not afforded, as required by the ECHR, an acceptable level of protection to a minor child where she had been surreptitiously filmed in the nude by her stepfather and the domestic law did not clearly criminalize this behavior.
In the case of Suárez Peralta v. Ecuador (2013), the IACtHR found that the lack of judicial guarantees in terms of criminal proceedings against those responsible for an alleged case of medical malpractice violated rights of a fair trial and to judicial protection. The surgery at a private clinic for appendicitis allegedly resulted in permanent aftereffects. The domestic criminal proceedings had not been moved forward by the judicial authorities and lacked any guarantees of due diligence. The passive role of the Prosecutor’s Office and the delay in pursuing the case meant that those possibly responsible went unpunished when the domestic statute of limitations was applied to the claims. The State authorities did not act with due diligence in order to guarantee the victim to a reparation enabling her to have access to the medical treatment required by her health problems.
In Escobar Ledezma v. Mexico (2013), the petitioners report that Paloma Angélica Escobar disappeared having left her home in the afternoon for her computer class and never returned. They adduced a series of irregularities, inconsistencies, and omissions from the beginning of the investigation into the facts and that as a result to date there have been no concrete results. The IACmHR determined that the Mexican State failed in its duty to act with due diligence to prevent, investigate, and punish the acts of violence suffered by Paloma Angélica Escobar. The IACmHR found in 2013 that the State has substantially complied with the recommendations made in its earlier Report No. 87/10.
The IACtHR ruled in Luna López v. Honduras (2013) that Honduras had failed to adequately investigate and prosecute the murder of Luna López, an environmentalist. The IACtHR concluded that Honduras is responsible for the violation of the rights to life and political participation of Luna López, and with the violation of the rights to personal integrity, judicial guarantees, and judicial protection of his family. The IACtHR recommended that the State remedy the violations and to conduct an effective judicial investigation of the assassination and to impose appropriate sanctions. Recalling the undeniable link between the protection of the environment and the protection of other human rights, the IACtHR recommended the State to adopt institutional measures aiming to reduce the risk to other environmental activists.
Observations
The jurisprudence for 2013 indicates a continuing trend in the referencing by these tribunals of others' jurisprudence. The IACtHR made explicit reference in García Lucero v. Chile (2013) to the jurisprudence of the ECtHR on the right to trial within a reasonable (see ¶ 246). Reference was made by the IACtHR in Luna López v. Honduras (2013) to the jurisprudence of the HRC on the subject of the obligation of States to adopt measures to guarantee the right to life of those persons who find themselves in situations of special vulnerability, particularly as a consequence of their work (see ¶ 123). This case also elevates the status of environmental activists in their need for protection. The obligation to investigate within a reasonable time, asserted by the IACtHR Suárez Peralta v. Ecuador (2013, ¶ 102), found support in the jurisprudence of the ECtHR. The jurisprudence of the ACmPHR made available for 2013 showed instances of a vigorous analysis of the international obligations in criminal justice issues. The ACmPHR extensively examined the jurisprudence of international tribunals, observing in Zimbabwe Human Rights NGO Forum v. Zimbabwe (2013), that the terms of Article 60 of the Banjul Charter require it to draw inspiration from international law. In this case, the ACmPHR could rely on international jurisprudence that requires that the use of force by law enforcement be necessary.
Several cases from several of the judicial bodies contribute to the body of jurisprudence on treatment that constitutes torture: the CmAT finding in Bendib v. Algeria (2013) and Evloev v. Kazakhstan (2013), the HRC in Sedhai v. Nepal (2013) and Al Khazmi v. Libya (2013), and the IACtHR in García Lucero v. Chile (2013). By contrast, certain low-level assaults by police do not constitute the lesser degrading treatment, such as found by the ECtHR in the context of the face slaps on the disrespectful brothers in Bouyid v. Belgium (2013).
Several decisions have direct implications for the United States. Most directly is the ECtHR opinion in Aswat v. UK (2013) rejecting extradition of the alleged terrorist to the United States. Not only does this impact extradition from Europe to the United States, the case confirms a human rights obligation for all countries to reject extradition of a person to a place where they would experience torture or inhuman or degrading treatment or punishment. Though the ECtHR did not accept that the conditions in ADX Florence, a likely place for his detention if extradited, would amount to treatment in breach of Article 3, it was the severity of his mental illness and its likely exacerbation in the harsh conditions that provided the distinguishing rationale for this case.
The IACmHR provided two reports on capital punishment arising directly out of the United States. In Teleguz v. US (2013), shortcomings were found in a wide array of criminal procedures. In Lackey v. US (2013), the IACmHR displayed a dedication for justice for the combined cases, despite the fact that the individuals have all been executed, calling for a moratorium in the United States.
There are cases in this review that touch on developing issues of jurisprudence in the United States, perhaps providing an insight into a direction for these developments. Consider the rejection of effectively nonreducible life sentences for all juveniles in Mendoza et al. v. Argentina (2013) that echoes the decision by the U.S. Supreme Court in Miller v. Alabama (2012), but also the requirement for life sentences for adults to be reducible as discussed in Vinter v. UK (2013) that goes beyond the current jurisprudence of the U.S. Supreme Court. A potential debate on the propriety of the use of a threshold of incitement by bias-inspired speech opens this review with the juxtaposition of the apparently differing perspectives of the HRC and the CmERD. The U.S. Supreme Court continues to hold the contrary view that the First Amendment protects advocacy even of unlawful action so long as that advocacy is not “directed to inciting or producing imminent lawless action and … likely to incite or produce such action,” as in Holder v. Humanitarian Law Project (2010, pp. 43–44) quoting Brandenburg v. Ohio (1969).
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.