Redress of Human Rights Abuses in Criminal Justice in International Human Rights Jurisprudence for 2010

Date01 December 2011
Published date01 December 2011
Subject MatterRecent Legal Developments
Recent Legal Developments
Redress of Human Rights
Abuses in Criminal Justice in
International Human Rights
Jurisprudence for 2010
Donald H. Wallace
This overview highlights the jurisprudence for the calendar year 2010 of international legal
norms for the accountability of human rights violations involving criminal justice systems. The jur-
isprudence for several major sources of legal norms for international human rights is highlighted.
The international treaty that has global reach is the International Covenant on Civil and Political
Rights (ICCPR). To monitor compliance, the ICCPR establishes the UN Human Rights Committee
(HRC), which, under the First Optional Protocol, may examine individual petitions. The European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) assigns the
European Court of Human Rights (ECtHR) with the task of monitoring compliance with this treaty
through examination of individual petitions. The Inter-American Commission on Human Rights
(IACmHR) 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. The purpose
of the Inter-American Court of Human Rights (IACtHR) is to interpret and apply the ACHR; its
judgments are binding on those states that have accepted the competence of the ACHR. The human
rights treaties underlying this jurisprudence share similar language in the guarantees impacting crim-
inal justice systems.
In this review, the criminal justice related cases decided by the ECtHR derive from the judgments
delivered in respect of 2,607 applications in 2010. Of these the ECtHR listed, as being of high impor-
tance, 85 cases available in English. The ECtHR considers judgments of high importance those that
make a significant contribution to the development, clarification, or modification of its case law.
There were 62 views involving individual complaints decided in 2010 by the HRC in its 98th,
99th, and 100th sessions. Further, the IACtHR reached eight judgments and the IACmHR decided
four cases on the merits in 2010. From these cases, those that deal with criminal justice issues were
identified. Only final judgments on the merits, available in English, are reviewed here.
The discussion of this case law is 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 the jurisprudence involving
University of Central Missouri, Warrensburg, MO, USA
Corresponding Author:
Donald H. Wallace, University of Central Missouri, Warrensburg, MO 64093, USA
International CriminalJustice Review
21(4) 479-494
ª2011 Georgia State University
Reprints and permission:
DOI: 10.1177/1057567711422483
the examination of sentencing and the rights of prisoners. This overview concludes with some com-
parisons to U.S. jurisprudence.
Rule of Law Fundamentals—No Crime or Punishment Without Law
EctHR. The 2004 guilty verdict at issue in Kononov v. Latvia (2010) for war crimes involving
the murder of 21 innocent civilians during World War II, according to the Grand Chamber, did
not violate the ECHR’s prohibition on retroactive laws in that the applicant’s acts constituted
offenses, which were defined with sufficient accessibility and foreseeability by the laws and cus-
toms of war.
HRC. Article 15 of the ICCPR provides an explicit exception to the ban on retroactive criminal
punishments by allowing the offender to benefit from the retroactive benefit of a lighter penalty;
in Cochet v. France (2010), the HCR observed that this language should be read to encompass the
situation where a subsequent law has altogether abolished a penalty. The domestic sex offenders act
in Tillman v. Australia (2010) had been enacted in 2006 shortly before the expiry of the author’s
sentence for an offence for a 1998 conviction, which was an essential element for his continued
imprisonment. The new sentence was the result of fresh proceedings, though labeled as civil pro-
ceedings, and violated Article 15.
NoviolationwasfoundinTofanyuk v. Ukraine (2010) where the author had been found
guilty in 1998 of murder and was sentenced to death. In 1999, the Ukrainian Constitutional
Court declared that capital punishment was unconstitutional. However, after this court’s deci-
sion, the most severe punishment under the extant criminal code was 15 years of imprisonment.
The HRC rejected the contention that following the 1999 decision the author was entitled to have
his sentence changed to 15 years imprisonment. The HRC viewed the penalty of life imprison-
ment established by statutory amendments as fully respecting the purpose of the Constitutional
Court’s decision, which was to abolish the death penalty, a penalty more severe than life
Substantive Limitations on Criminal Law
EctHR. The jurisprudence for 2010 on substantive limitations was confined to restrictions on the
freedom of expression. The ECtHR found a violation of Article 10 of the ECHR in Fatullayev v.
Azerbaijan (2010) where the applicant had suffered criminal convictions for newspaper articles cri-
ticizing the foreign and domestic policy of the Azerbaijani government. The gravity of the interfer-
ence on this freedom was exacerbated by the severity of the penalties imposed on the applicant:
Eight years’ imprisonment on the charge of threat of terrorism and three years’ imprisonment on the
charge of incitement to ethnic hostility.
HRC. The HRC considered the inability of the author in Andersen v. Denmark (2010) to have the
Danish authorities prosecute a Member of Parliament for a statement made on National Danish Tele-
vision comparing Muslim headscarves with the Nazi swastika. Though the author adheres to the
Muslim faith and wears a headscarf for religious reasons, the HRC considered that the author failed
to establish that the statement would have specific consequences for her. Thus, the author had failed
to demonstrate that she was a victim for purposes of the ICCPR. In Umarova v. Uzbekistan (2010),
the HRC found that the arrest, trial, and conviction of Mr. Umarova as a leader of a political oppo-
sition group in Uzbekistan, resulted in effectively preventing him from expressing his political views
in violation of Article 19(2).
480 International Criminal Justice Review 21(4)

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