Recent Legal Developments

• Author: Donald Wallace
• Published date: 01 December 2014
• Date: 01 December 2014
• DOI: http://doi.org/10.1177/1057567714545990
• Subject Matter: Recent Legal Developments

Recent Legal Developments
International Criminal Justice Review
2014, Vol. 24(4) 424-439
Recent Legal Developments:
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DOI: 10.1177/1057567714545990
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Abuses in Criminal Justice in
International Human Rights
Jurisprudence in 2013
Donald Wallace1
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 Interna-
tional 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
1 University of Central Missouri, Warrensburg, MO, USA
Corresponding Author:
Donald Wallace, University of Central Missouri, 300 Humphreys, Warrensburg, MO 64093, USA.
Email: wallace@ucmo.edu

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Wallace
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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 deli-
neated 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 distur-
bance 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 com-
pared with the approach of the HRC in A.W.P. v. Denmark (2013). Here, three members of the Dan-
ish 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 spe-
cific statements had specific consequences for him or that the specific consequences of the state-
ments 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

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International Criminal Justice Review 24(4)
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 infor-
mation 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 pur-
poses 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...