Redress of Human Rights Abuses in Criminal Justice in International Human Rights Jurisprudence in 2012

• DOI: 10.1177/1057567713509404
• Published date: 01 December 2013
• Date: 01 December 2013
• Subject Matter: Recent Legal Developments

Recent Legal Developments

Redress of Human Rights

Abuses in Criminal Justice in

International Human Rights

Jurisprudence in 2012

Donald Wallace

1

This overview highlights the jurisprudence for the year 2012 for international human rights obliga-

tions of nations involving their criminal justice systems. The jurisprudence derives from several

major human rights treaties; their guarantees share similar language impacting criminal justice sys-

tems. There are United Nations human rights treaty bodies that monitor implementation of the

human rights treaties through an individual petition process; thus, the 2012 jurisprudence included

that 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 and Other

Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Committee on the Elimination of

Racial Discrimination (CmERD) for the Convention on the Elimination of All Forms of Racial Dis-

crimination, and the Committee on the Elimination of Discrimination Against Women (CmEDAW)

for the Convention on the Elimination of Discrimination Against Women. Regional regimes have

judicial bodies that seek compliance with human rights norms. For 2012, jurisprudence came from

the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),

for which the European Court of Human Rights (ECtHR) monitors member states’ compliance. The

judgments of the Inter-American Court of Human Rights (IACtHR) are binding on states that have

accepted the American Convention on Human Rights (ACHR).

Final judgments on the merits in criminal justice–related cases, available in English, are the focus

of this review. Of the 2,090 judgments by the Grand Chamber and Chamber panels of the ECtHR in

2012, there were 303 judgments listed of highest importance; of these, 27 judgments are substan-

tially related to criminal justice. There were 22 cases decided in 2012 by the HRC involving criminal

justice system issues. The CmEDAW and CmERD each decided one case involving national crim-

inal justice systems. The CmAT decided five such cases. The IACtHR reached nine final pertinent

judgments. For 2012 neither the African Commission on Human and Peoples’ Rights nor the Inter-

American Commission on Human Rights decided any cases relevant for this review. The discussion

of this jurisprudence is organized by the order of the processes of a criminal justice system, begin-

ning with the rule of law issues, followed by concerns in criminal investigation (interrogations and

1

University of Central Missouri, Warrensburg, MO, USA

Corresponding Author:

Donald Wallace, University of Central Missouri, Warrensburg, MO 64093, USA.

Email: wallace@ucmo.edu

International CriminalJustice Review

2013, Vol. 23(4) 414-429

ª2013 Georgia State University

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DOI: 10.1177/1057567713509404

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searches), pretrial and trial rights, sentencing, appeals, prisoners’ rights, and culminating in the

examination of the rights of crime victims. This overview concludes with observations on a few

developments in this 2012 jurisprudence.

Substantive Limitations on the Criminal Law

Generally, limitations, such as criminal sanctions on rights of expression and assembly may be

imposed under limited circumstances, where the interference is prescribed by law, prompted by one

or more of the legitimate aims delineated in the human rights treaty, and is necessary in a democratic

society. The applicant in Patyi v. Hungary (2012) had applied in February 2007 to a Budapest police

department for authorization to organize a demonstration in front of the Parliament building. The

police refused to deal with his application as the area in question had been declared a security opera-

tional zone ever since September 2006. However, in 2010 the domestic courts had criticized the

authorities for failing to assess the necessity and proportionality after November 2006 of that mea-

sure, and the police had later agreed with this finding. These domestic findings led the ECtHR to

conclude that the ban on Kossuth Square at the material time was devoid of a basis in domestic law

and cannot as such be regarded as prescribed by law and resulted in a violation of the freedom

of assembly. In Kakabadze v. Georgia (2012), the asserted aim to limit the demonstration held out-

side a courthouse was the prevention of disorder and the protection of the authority of the judiciary.

But according to the ECtHR, the limitation cannot be disproportionate, as in this case where just five

persons participated in the demonstration that was dispersed a few minutes after it had started. Here

the ECtHR found that the Georgian authorities did not adduce adequate reasons justifying the inter-

ference, and imposition of a sanction of arrest and 30-day sentence, which was disproportionate in

the circumstances. The HRC similarly concluded in Katsora v. Belarus (2012) that sentencing to 10

days of administrative arrest for distributing leaflets that informed the public about an unauthorized,

mass meeting and announcing a forthcoming debate by a former presidential candidate could not be

considered as restrictions deemed necessary for the protection of national security or of public order,

thus there was a violation of the protections of the freedoms of expression and to impart information.

Further, the HRC found in Belyazeka v. Belarus (2012) that following his arrest for participating in

an unauthorized mass event to commemorate individuals who perished in the Stalinist camps in

Soviet Russia, the author was convicted of violating the domestic code of administrative offenses

for holding a picket without a permit. The HRC held that the domestic laws imposed a procedure

for holding mass events that restricted the freedom to impart information, which did not serve a

legitimate purpose.

Seizure of Person

Three broad categories of issues are seen in the 2012 jurisprudence on the deprivation of individ-

ual liberty, involving politically motivated arrests, excessive force, and legal authority.

Politically Motivated. Article 18 of the ECHR requires a good faith use of limitations on rights such that

restrictions are not allowed for purposes other than those for which they have been prescribed. Thus,

improper motivations underlying an arrest may be examined. In Lutsenko v. Ukraine (2012), a for-

mer Interior Minister and leader of an opposition political party faced criminal charges for unlaw-

fully arranging work-related benefits for an employee soon after a change of power in Ukraine. This

happened in a context of politically motivated prosecutions of the opposition leaders. The appli-

cant’s arrest and detention had their own distinguishable features allowing the ECtHR to look into

the matter separately from the more general context of politically motivated prosecution of the oppo-

sition leader, showing a violation of Article 18.

Wallace 415