Recent Legal Developments

• Author: Donald Wallace
• Published date: 01 December 2009
• Date: 01 December 2009
• DOI: http://doi.org/10.1177/1057567709346256
• Subject Matter: Articles

Recent Legal Developments

Redress of Human Rights Abuses in

Criminal Justice in International

Human Rights Jurisprudence for 2008

Donald Wallace

University of Central Missouri, Warrensburg, Missouri

This overview highlights the jurisprudence for the calendar year 2008 of international

legal norms for the accountability of human rights violations involving criminal justice

systems. The jurisprudence for the three major sources of legal norms for international

human rights is highlighted.

1

The international treaty that has global reach is the Interna-

tional Covenant on Civil and Political Rights (ICCPR). To monitor compliance, the ICCPR

established the UN Human Rights Committee (HRC), which under the First Optional Pro-

tocol may examine individual petitions. The European Court of Human Rights (ECtHR)

was established by the European Convention for the Protection of Human Rights and Fun-

damental Freedoms (ECHR) with the task of monitoring compliance with this treaty

through the examination of individual petitions. The Inter-American Commission on

Human Rights (IAC) receives, analyzes, and investigates individual petitions that allege

human rights violations of the American Declaration of the Rights and Duties of Man and

the American Convention on Human Rights. These human rights documents share a similar

language in the specific guarantees affecting criminal justice systems.

In this review, the criminal justice-related cases decided by the ECtHR derive from the

1,881 judgments delivered in 2008. Of these, the ECtHR listed 78 cases available in Eng-

lish, as being of high importance.

2

From these cases, those that deal with criminal justice

issues were identified. The HRC decided 42 views in 2008 in its 93rd and 94thSessions from

which to select criminal justice-related cases. Furthermore, in 2008 there were three criminal

justice cases decided on the merits by the IAC. The discussion of this case law is roughly

organized by the order of the processes of a criminal justice system, beginning with efforts

to ensure the predominance of the rule of law followed by issues in criminal investigation

and pretrial and trial rights, and culminating in jurisprudence examining life sentences and

the rightsof prisoners. This overviewconcludes with somecomparisons to U.S. jurisprudence.

Accountability of Government Actors

ECtHR

In Dodov v. Bulgaria (2008), the ECtHR underscored the basic rule of law prin-

ciples of the need to hold accountable individuals at fault in failing to uphold legal

Author’s Note: Please address correspondence to Donald Wallace, Department of Criminal Justice, University

of Central Missouri, Warrensburg, MO 64093; e-mail: wallace@ucmo.edu.

International Criminal

Justice Review

Volume 19 Number 4

December 2009 507-523

#2009 Georgia State University

Research Foundation, Inc.

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507

obligations. Dodov’s complaint dealt with the disappearance of his mother from a nur-

sing home, now presumed dead. The ECtHR found that the mother’s life had been put at

risk through inexcusable negligence on the part of nursing home staff and deficient reg-

ulations. The ensuing investigation had not resulted in criminal or disciplinary sanctions

and the applicant’s attempt to obtain compensation in civil proceedings had been fru-

strated by the dilatory approach of the State authorities and courts. The ECtHR found

that the relevant criminal law remedies did not secure the accountability of those respon-

sible, where the authorities did not ensure an effective opportunity for establishing the

facts surrounding the disappearance of the mother. The State failed to take appropriate

steps to uphold its positive obligation to take preventive operational measures to protect

an individual whose life is at risk from self-harm. However, the ECtHR found that since

the nursing home staff, which—unlike the police—knew the mother’s physical appear-

ance well, and had searched this area of the large city in vain, it was not unreasonable to

not deploy police forces for an immediate search.

Two ECtHR decisions arose from attempts by individuals enabling public scrutiny of

government officials for their improprieties. These individuals sought protection under

Article 10 of the ECHR, which makes some qualifications for its guarantee of freedom

of expression that include the interests of public safety, the prevention of disorder or crime,

the protection of health or morals, or for maintaining the authority and impartiality of the

judiciary. In Guja v. Moldova (2008), at the material time, Guja was the Head of the Press

Department of the Prosecutor General’s Office. In January 2003, the President of Moldova

visited the Center for Fighting Economic Crime and Corruption for a widely reported dis-

cussion on the problem of public officials placing pressure on law-enforcement bodies

about pending criminal proceedings. A few days later, the applicant gave a national news-

paper two letters received by the Prosecutor General’s Office, neither of which bore any

sign of being confidential. These letters disclosed interference by a high-ranking politician

in pending criminal proceedings of police officers. Guja was dismissed from the Prosecutor

General’s Office for divulging the documents. The ECtHR considered that, in the circum-

stances of the applicant’s case, external reporting, even to a newspaper, could be justified.

The ECtHR noted that neither the Moldovan legislation nor the internal regulations of

the Prosecutor General’s Office contained any provision concerning the reporting of irre-

gularities by employees. Given the importance of the right of civil servants and other

employees to report wrongdoings at their place of work, the ECtHR concluded that the

interference with the applicant’s right to freedom of expression, in particular his right to

impart information, was not necessary in a democratic society, resulting in the violation

of Article 10.

In July v. France (2008), the publication director of the French daily newspaper Libe

´ra-

tion and its parent company challenged their convictions for the defamation of judges

investigating the case of another judge found dead in suspicious circumstances. The defa-

matory remark in the newspaper article, which reported on a press conference regarding the

investigation of the case, was the accusation made by one of the participants that the inves-

tigation was being conducted in a bizarre fashion. There was a breach of Article 10 because

the limits of acceptable criticism are wider where civil servants act in an official capacity.

In particular, the investigating judges here could legitimately be the subjects of criticism.

The remark in question could not be considered manifestly insulting to these judges.

Criminal liability for such language conflicted with the watchdog role of the press.

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