Prosecuting Human Rights Offences : Rethinking the Sword Function of Human Rights Law [1 ed.] 9789004337763, 9789004337756

Citation preview

Prosecuting Human Rights Offences

International Criminal Law Series Series Editor M. Cherif Bassiouni (USA/Egypt)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; Honorary President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal

Kai Ambos (Germany), Judge, André Klip (The Netherlands), Ulrich Sieber (Germany), District Court, Göttingen; Professor of Law, Department of Professor of Criminal Law, Professor of Law and Head, Criminal Law and Criminology, Director, Max Plank Institute Department for Foreign and Faculty of Law, Maastricht University for Foreign and International International Criminal Law, Erkki Kourula (Finland), Former Criminal Law, University of Georg August Universität Judge and President of the Freiburg Mahnoush Arsanjani (Iran), Appeals Division, International Göran Sluiter (The Netherlands), Member, Institut de Droit Criminal Court Professor of Law, Department International; former Director, Motoo Noguchi (Japan), Legal of Criminal Law and Criminal Codification Division, United Adviser, Ministry of Justice of Japan; Procedure, Faculty of Law, Nations Office of Legal Affairs Visiting Professor of Law, University University of Amsterdam Mohamed Chande Othman of Tokyo; former International Otto Triffterer (Austria), (Tanzania), Chief Justice, Judge, Supreme Court Chamber, Professor of International Court of Appeal of Tanzania Extraordinary Chambers in the Criminal Law and Procedure, Eric David (Belgium), Professor Courts of Cambodia Faculty of Law, University of of Law, Faculty of Law, Free Diane Orentlicher (usa), Professor Salzburg University of Brussels of International Law, Co-Director, Françoise Tulkens (France), Mireille Delmas-Marty (France), Center for Human Rights and Former Vice-President, Professor of Comparative Legal Humanitarian Law, Washington European Court of Human Studies and Internationalisation College of Law, American Rights of Law, Collège de France; former University Xuimei Wang (China), Professor Professor of Criminal Law, Fausto Pocar (Italy), Judge and of International Criminal Law, University of Paris former President, International College for Criminal Law Adama Dieng (Senegal), Criminal Tribunal for the Science, Beijing Normal UN Secretary-General’s Special Former Yugoslavia; President, University; Executive Director, Adviser on the Prevention of International Institute of icc Project Office Genocide; former Registrar, Humanitarian Law; Professor of Christine van den Wyngaert International Criminal Tribunal International Law Emeritus, (Belgium), Judge, International for Rwanda; former Secretary University of Milan Criminal Court; former General, International Leila Nadya Sadat (France/usa), Judge, International Criminal Commission of Jurists Henry H. Oberschelp Professor Tribunal for the Former Mark Drumbl (Canada/usa), of Law, Director, Whitney R. Harris Yugoslavia; former Ad hoc Class of 1975 Alumni Professor World Law Institute, Washington Judge, International Court of Law, Director, Transnational University School of Law; Alexis of Justice Law Institute, Washington and de Tocqueville Distinguished Gert Vermeulen (Belgium), Lee University School of Law Fulbright Chair, University of Professor of Criminal Chile Eboe-Osuji (Nigeria), Judge, Cergy-Pontoise Law, Director, Research Trial Division, International William Schabas (Canada/Ireland), Group Drug Policy, Criminal Criminal Court; former Legal Professor of International Law, Policy and International Adviser to the High Commis­ Department of Law, Middlesex Crime, Ghent University; sioner for Human Rights, Office University; Professor of Extraordinary Professor of of the High Commissioner for International Criminal Law and Evidence Law, Maastricht Human Rights Human Rights, Leiden University; University Geoff Gilbert (uk), Professor of Honorary Chairman, Irish Centre Giuliana Ziccardi Capaldo Law and Head of the School of for Human Rights, National (Italy), Professor of Law, University of Essex University of Ireland Galway International Law, Faculty Philippe Kirsch (Belgium/ Michael Scharf (usa), Dean and John of Law, University of Canada), Ad hoc Judge, Inter­ Deaver ­Drinko-Baker & Hostetlier Salerno national Court of Justice; former Professor of Law, Director, Frederick President, International Criminal K. Cox International Law Center, Court; Ambassador (Ret.) and Case Western Reserve University former Legal Adviser, Ministry School of Law of Foreign Affairs of Canada

VOLUME 11 The titles published in this series are listed at brill.com/icls

Prosecuting Human Rights Offences Rethinking the Sword Function of Human Rights Law By

Krešimir Kamber

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Kamber, Krešimir, author. Title: Prosecuting human rights offences : rethinking the sword function of human rights law / by Krešimir Kamber. Description: Leiden ; Boston : Brill, 2017. | Series: International criminal law series ; volume 11 | Based on author’s thesis (doctoral - Ghent University Faculty of Law, 2016) issued under title: Effective application of criminal law mechanics in human rights protection : the function of criminal prosecution in contemporary criminal justice systems. | Includes bibliographical references and index. Identifiers: lccn 2016050628 (print) | lccn 2016051042 (ebook) | isbn 9789004337756 (hardback : alk. paper) | isbn 9789004337763 (E-book) Subjects: lcsh: Prosecution--Decision making. | Liability for human rights violations. | Human rights--Criminal provisions. | Victims of crimes--Civil rights. | International and municipal law. Classification: lcc k5425 .k36 2017 (print) | lcc k5425 (ebook) | ddc 341.4/8--dc23 lc record available at https://lccn.loc.gov/2016050628

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2213-2724 isbn 978-90-04-33775-6 (hardback) isbn 978-90-04-33776-3 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To My Family

⸪

Contents Preface xiii List of Figures xv Abbreviations and Acronyms xvi 1 Introduction 1 1 Restructuring the Relationships of Criminal Process from a Human Rights Perspective 1 2 A Paradoxical Relationship of Criminal Law and Human Rights as a Research Question 6 3 Methodological Issues 15 3.1 The Scope of the Study 15 3.2 Methodological Choices 18 3.2.1 Human Rights Offences 18 3.2.2 The Sources of International Human Rights Law 22 3.3 Structure of the Book 27 2 Procedural Obligation in the Multi-layered Structure of Human Rights 29 1 Proceduralisation of Human Rights 29 2 Procedural Obligation within the Structure of Positive Obligations 36 2.1 Introduction 36 2.2 Procedural Obligation as a Democratic Limit in the Application of Criminal-law Mechanisms 40 2.3 Reducing the Procedural Obligation from the General Scope of Positive Obligations 42 3 Procedural Obligation and the Right to an Effective Remedy in Human Rights Law 48 3.1 The Right to a Remedy in Human Rights Law 48 3.2 Application of Criminal-law Mechanisms as a Remedy for Breaches of Human Rights 53 3.2.1 Punishment as Retribution 56 3.2.2 Deterrence through Punishment 59 3.2.3 Punishment and Restorative Justice 61 3.2.4 Criminal-law Remedies and the Right to Truth 65 3.3 Obligation to Investigate and Prosecute in the Structure of the Right to a Remedy 71

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Procedural Obligation as an Inherent Component of Human Rights Norms 73 Instead of Conclusion: Conceiving the Procedural Obligation within a General Conceptual Framework 78 5.1 Substantive or Procedural Primacy 79 5.2 Procedural Obligation and the Right to a Remedy 85 5.3 Procedural Obligation and the Concept of Positive Obligations 88

3 Obligation to Investigate and Prosecute Human Rights Offences in International Human Rights Law 92 1 Obligation to Investigate and Prosecute Human Rights Offences in the Soft Law Instruments 92 1.1 Obligation to Investigate and Prosecute in the un Instruments 92 1.1.1 un Declaration on Torture 92 1.1.2 Basic Principles of Justice for Victims 93 1.1.3 Declaration on Enforced Disappearance 96 1.1.4 Principles on the Investigation of Summary Executions 98 1.1.5 Vienna Declaration 101 1.1.6 Principles on Impunity 102 1.1.7 Victims Rights Guidelines 104 1.2 Obligation to Investigate and Prosecute in the coe Instruments 107 1.2.1 Rec(85)11 on Crime Victims Rights 107 1.2.2 Guidelines on Impunity 108 1.2.3 coe Mechanisms on the Protection from Sexual Exploitation and Abuse 110 1.2.4 coe Mechanisms Related to Domestic Violence 118 1.2.5 coe Mechanisms on the Protection of Victims of Terrorist Acts 120 2 Obligation to Investigate and Prosecute Human Rights Offences in the Mechanisms of Soft Enforcement 122 2.1 Obligation to Investigate and Prosecute under the iccpr 122 2.1.1 Conceptualising the Obligation to Investigate and Prosecute under the iccpr 122 2.1.2 General Duty to Effectively Apply Criminal-Law Mechanisms 124 2.1.3 Particular Instances of the Duty to Investigate and Prosecute 131 2.2 Obligation to Investigate and Prosecute under the cat 137

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2.2.1 Duty to Prosecute 143 2.2.2 Duty to Investigate 151 2.2.3 Duty to Redress 157 2.3 Obligation to Investigate and Prosecute under the ced 159 2.3.1 The ex post Aspects of Protection: The Right to Truth and the Obligation to Investigate 163 2.3.2 Reparative Aspects: The Right to Access to Justice 165 2.3.3 Repression of Enforced Disappearance 166 3 Obligation to Investigate and Prosecute Human Rights Offences in the Mechanisms of Direct Impact 170 3.1 Obligation to Investigate and Prosecute under the achr 170 3.1.1 Conceptualising the Obligation to Investigate and Prosecute under the achr 170 3.1.2 The State Responsibility in Ensuring Human Rights 173 3.1.3 Duty to Investigate (and Prosecute) and Punish 175 3.1.4 Criminal Investigation and Prosecution as Mechanisms of Reparation 185 3.2 Obligation to Investigate and Prosecute in the achpr System 189 3.2.1 Conceptualising the Obligation to Investigate and Prosecute under the achpr 189 3.2.2 Obligation to Investigate and Prosecute in the African Human Rights Case-Law 192 4 Obligation to Investigate and Prosecute Human Rights Offences in eu Law 197 4.1 A (Still) Developing Concept of Human Rights Protection within the eu 197 4.2 The Victims Directive 202 4.2.1 Victims’ Functional Rights 203 4.2.2 Victims’ Participatory Rights 205 4.3 Specific Areas of Human Rights Protection through the Effective Application of Criminal-Law Mechanisms 207 5 Conclusion 212 4 Obligation to Investigate and Prosecute Human Rights Offences under the echr 217 1 Procedural Obligation under the echr 217 2 Article 2 echr (Right to Life) and Article 3 echr (Prohibition of Torture) 218 2.1 Applicability of the Procedural Obligation under Article 2 echr 219

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2.1.1 2.1.2

3 4 5

6

Killings by State Agents 219 Deaths Related to Wide-Scale Operations of Military and Security Forces 222 2.1.3 Enforced Disappearances 224 2.1.4 Deaths in Custody and State Institutions 225 2.1.5 Suicides 229 2.1.6 Deaths Caused by Hazards 230 2.1.7 Road Accidents 232 2.1.8 Medical Negligence 232 2.1.9 Killings by Private Parties and Other Suspicious Deaths 234 2.2 Applicability of the Procedural Obligation under Article 3 echr 236 2.2.1 Ill-Treatment by State Authorities 239 2.2.2 Private Violence 240 2.2.3 Negligence 242 2.3 Effectiveness of the Procedural Obligation under Articles 2 and 3 echr 243 2.3.1 Appropriate Procedural Avenue 246 2.3.2 Institution of Proceedings 288 2.3.3 Requirements of Independence and Impartiality 291 2.3.4 Public Scrutiny of the Proceedings and Victim Participation 296 2.3.5 Promptness and Reasonable Expedition of the Proceedings 304 2.3.6 Procedural Thoroughness: Adequacy or Effectiveness in the Narrow Sense 310 Article 4 echr (Prohibition of Slavery and Forced Labour) 326 3.1 Applicability of the Procedural Obligation 326 3.2 Effectiveness of the Procedural Obligation 327 Article 5 echr (Right to Liberty and Security) 330 4.1 Applicability of the Procedural Obligation 330 4.2 Effectiveness of the Procedural Obligation 331 Article 8 echr (Right to Respect for Private and Family Life) 332 5.1 Applicability of the Procedural Obligation 332 5.2 Particular Instances of the Applicability of the Procedural Obligation 333 5.3 Effectiveness of the Procedural Obligation 336 5.3.1 The General Approach 336 5.3.2 Private Prosecution 340 5.3.3 Procedural Obligation in Cases of Negligence 342 Article 9 echr (Freedom of Thought, Conscience and Religion) 343

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6.1 Applicability of the Procedural Obligation 343 6.2 Effectiveness of the Procedural Obligation 344 7 Article 10 echr (Freedom of Expression) 345 7.1 Applicability of the Procedural Obligation 345 7.2 Effectiveness of the Procedural Obligation 346 8 Article 11 echr (Freedom of Assembly and Association) 347 8.1 Applicability of the Procedural Obligation 347 8.2 Effectiveness of the Procedural Obligation 348 9 Article 14 echr (Prohibition of Discrimination) 348 9.1 Applicability of the Procedural Obligation 348 9.2 Effectiveness of the Procedural Obligation 352 10 Article 1 of Protocol No. 1 to the echr (Protection of Property) 354 10.1 Applicability of the Procedural Obligation 354 10.2 Effectiveness of the Procedural Obligation 355 11 Conclusion 357 11.1 Applicability of the Procedural Obligation 357 11.1.1 Applicability of Criminal-Law Mechanisms as the Requirement of an Official Investigation 357 11.1.2 The Requirement of an Effective Judicial System 359 11.2 Effectiveness of the Procedural Obligation 360 5 The Concept of Procedural Obligation in Practical Legal Reasoning 364 1 Introduction 364 2 Logical and Conceptual Juridical Construction of the Concept of Procedural Obligation 367 3 Substantive and Criterial Aspect of the Right-Claim to Effective Application of Criminal-Law Mechanisms 380 4 Instead of Conclusion 387 6 Conceptualising Variances: The Right-claim to Effective Application of Criminal-law Mechanisms and the Public Prerogative of Criminal Prosecution 389 1 Prosecutorial Discretion 389 1.1 Introduction 389 1.2 Discretion 392 1.3 Discretion in the Charging Process 398 1.4 Public Interest and the Human Rights Element in the Charging Process 406 1.4.1 Weighing of Human Rights and Public Interest 409 1.4.2 Weighing the Human Rights Element in Prosecutorial Decision-making 414 1.5 Conclusion 418

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Protection of the Rights of the Accused 421 2.1 Introduction 421 2.2 A Spurious Conflict 426 2.3 Optimisation of the Central Ranges of Protection 434 2.4 Procedural Optimisation in the Context: The Example of ne bis in idem 441 2.4.1 The ne bis in idem Principle in International Human Rights Law 441 2.4.2 Optimising the ne bis in idem Protection and the Right-claim to Effective Application of Criminal-law Mechanisms 453 2.5 Scope of the Intended Procedural Optimisation 458

7 Optimising Variances: Differentiation of the Human Rights Element in the Charging Process 460 1 Introduction 460 2 Two Mechanisms of Procedural Optimisation 463 2.1 The Mechanisms of Procedural Optimisation in National Criminal Justice Systems 464 2.1.1 The Private Prosecution Model 464 2.1.2 The Review Model 472 2.2. The Two Mechanisms of Procedural Optimisation in International Materials 479 2.3 The Mechanisms of Procedural Optimisation in the ECtHR Case-law 482 2.3.1 The Private Prosecution Model in the ECtHR Case-law 484 2.3.2 The Review Model in the ECtHR Case-law 491 3 Conclusion 499 8 Conclusion 504 Bibliography 511 Table of Cases 511 Table of Statutes  535 Table of Secondary Sources 538 Table of International and Comparative Materials 540 Literature 543 Index 573

Preface This book is a result of my doctoral research completed and defended at the Ghent University Faculty of Law (Belgium). The idea for this study has been born of my professional and academic experience, developed in the sphere of criminal justice and human rights. As a lawyer fortunate enough to be working in those two fascinating and vital fields of law, I have often heard some d­ issonant voices concerning the procedural requirement to investigate and prosecute ­human rights offences arising from the relevant conceptions of h ­ uman rights law and the traditional criminal law doctrine on the matter. In this study I have endeavoured to understand the said procedural requirement of human rights law by observing it from the perspective of the relevant precepts of criminal law. I have thereby made an effort to conceive the manner of reduction of the conceptual gaps arising from the variances between the public-based and human rights-based assertions in the administration of criminal justice. A number of persons have contributed to the development and realisation of this study and any attempt limited by the reasonable constraints of a preface will inevitably be imperfect and inconsistent. I am nevertheless obliged to name some of them and to ask forgiveness from all those that I would not be able to mention. A person who has followed me through all the stages of the development of this study is my mentor and friend Tom Vander Beken to whom I shall remain forever indebted for his patient and always constructive suggestions for the improvement and realisation of the study. I also have to express my special gratitude to Gert Vermeulen and Yves Haeck with whom I have had a number of interesting and thought-provoking discussions that have inspired some of the central arguments of the study. Gert Vermeulen’s assistance and support in the publication process of this book is particularly highly appreciated. I am also thankful to Michel Tison, Françoise Tulkens, Philip Traest and Joachim Meese for their meticulous reading of an earlier version of this text and for all their insightful observations and suggestions. Of a special importance in the preparation of this book was the editing assistance of Ivana Bendow to whom I also express my sincere appreciation. I owe particular gratitude to all my colleagues working in the Registry of the European Court of Human Rights and to all judges of the Court with whom I have the privilege to work. Their support and astonishing competence and knowledge have been a great inspiration for the development of this study. Moreover, mes amis strasbourgeois deserve a special gratitude for their ­endless support and encouragement for my research.

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Most importantly of all, I have to express my deepest sense of appreciation and respect for the immense understanding, patience and support of my wife Marija and my parents. They have constantly been the main driving force behind any achievement I have managed to make. I am therefore devoting any recognition and commendation which this book might deserve completely to them and to my daughter Nora, the most inspiring person in my life. Any omission or possible miscomprehension expressed in this book is completely mine. The opinions expressed are my personal. Krešimir Kamber Strasbourg, August 2016

List of Figures 1.1 Structure of the charging process from a human rights perspective 3 6.1 Human rights element in the prosecutorial decision-making 416 6.2 A just resolution of a criminal matter 431 6.3 Disturbed symmetry of criminal process 456

Abbreviations and Acronyms achr

American Convention on Human Rights, 22 November 1969 achpr African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981 AComHPR African Commission on Human and Peoples’ Rights ACtHPR African Court of Human and Peoples’ Rights cat Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85, 10 December 1984 ced International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006 cisa Convention Implementing the Schengen Agreement, Official Journal L 239, 22/09/2000 P. 0019– 0062 cjeu Court of Justice of the European Union coe Council of Europe coe-cm/Committee of Ministers Council of Europe, Committee of Ministers ComAT Committee against Torture doc. Document echr European Convention for the Protection of Human Rights and Fundamental Freedoms, cets No. 005, as amended by Protocols No. 11 and No. 14, 4 November 1950 EComHR European Commission of Human Rights ECtHR European Court of Human Rights ed(s). Editor(s) et al. And others eu European Union eu Charter Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02 gc Grand Chamber of the European Court of Human Rights hrc Human Rights Committee under Article 28 of the International Covenant on Civil and Political Rights

Abbreviations and Acronyms IAComHR

xvii

Inter-American Commission on Human Rights IACtHR Inter-American Court of Human Rights icc International Criminal Court iccpr International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171, 16 December 1966 icj International Court of Justice no(s). Number(s) p(p). Page(s) par(as). Paragraph(s) Protocol No. 1 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms cets No. 009, 20 March 1952 Protocol No. 7 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms cets No. 117, 22 November 1984 Rec(2000)19 Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system of 6 October 2000 Rome Statute Rome Statute of the International Criminal Court, 17 July 1998 teu Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 2007/C 306/01, 13 December 2007 tfeu Treaty of the Functioning of the European Union, consolidated version, 2012/C 326/01 un United Nations Universal Declaration of Human Rights un General Assembly, Universal Declaration of Human Rights, 217 A (iii), 10 December 1948 v. Versus Victims Directive Directive of the European Parliament and the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/ JHA, 2011/0129 (cod) pe-cons 37/12, 30 September 2012

chapter 1

Introduction 1

Restructuring the Relationships of Criminal Process from a Human Rights Perspective

It is often forgotten, as conspicuously pointed out by George P. Fletcher, that there are several sides to every criminal case.1 First is the side of the accused. The accused is particularly protected by law as he or she is put in peril in which his or her liberty or some other legally protected interests would be at stake in the event of an unjust conviction. On the other hand, the victims of crime hold their side in the criminal case. They also have an interest in the administration of criminal justice related to their claim to dignity, consideration and a just outcome of the process. There is always the third side held by the state, which, in the legally governed process of social reaction to a crime,2 coordinates the “wrenching conflict of interest” between the victim and the accused and thereby inevitably pursues a particular political agenda, presumably aimed at the determination of a social dispute without which the conflict created by the offence might continue to exist and lead to further contentions.3 And there is also the side of the community where the crime has occurred, which has an interest in seeing the resolution of the conflict. This reality of a criminal case contemplated by Fletcher should be further refined by introducing the human rights element in the structure of the criminal process. That is mandated by some important developments in the theory and practice of human rights law which call for a reconsideration of the structure of criminal procedure and in particular the function of criminal prosecution. The necessity of reconstruction of the criminal process in line with these developments is generally seen as a result of the contemporary untenability of the sovereignty-based arguments against the necessity of an application of the requirements of international human rights law, which have been successfully penetrating into domestic criminal justice discourse4 leading 1 G.P. Fletcher, “Against Universal Jurisdiction”, 1 Journal of International Criminal Justice (2003), pp. 580–584. 2 S. Gaston, G. Levasseur and B. Bouloc, Droit Pénal Général (Paris, Dalloz 1997), p. 9. 3 S. Guinchard and J. Buisson, Procédure Pénale (Paris, Litec 2000), p. 3. 4 M.C. Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions”, 3(235) Duke Journal of Comparative & International Law (1993), pp. 238 and 240.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_002

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to a perceptible process of domestication of international human rights standards in the national constitutional and legal discourse.5 Put differently, the national judge in the domestic criminal proceedings is obliged to ensure the application of international human rights standards by relying on the relevant law.6 In this context, the norms of international human rights law, in a domestic constitutional setting, can be seen as legal rules of the highest order.7 Or, as somewhat enthusiastically advanced by the IACtHR, as the legal norms superior to the state power,8 which, in a contemporary setting of human rights protection, very often becomes susceptible to an international human rights scrutiny and direction. In the context of such domestication of international human rights standards, this study will seek to introduce in the structure of criminal process the emerging concept of the procedural obligation in human rights law, which in its criminal-law aspect, in the most general terms, can be determined as the obligation to investigate, prosecute and, if appropriate, punish criminal attacks on human rights.9 It will thereby essentially contemplate an argument for conceiving the function of criminal prosecution (and, naturally, its auxiliary precedence – investigation; and consequence – punishment) as a legal obligation flowing from the human rights of an individual. Such an obligation is not owed to the society as a whole but to the person who has suffered personal damage by the occurrence of a criminal offence.10 In this context, even the public interest in the prosecution of crime can be seen as the

5

6

7 8 9

10

J. Rehman, “Influence of International Human Rights Upon Criminal Justice Systems”, 66(6) Journal of Criminal Law (2002), p. 525; H. Dumont, “Les obligations positives déduits du droit international des droits de l’homme : dans quelles limites ?” in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal ? (Brussels, Bruylant 2007), p. 67. C. Binder, “Beyond Dispute: International Judicial Institutions as Lawmakers. The Prohibition of Amnesties by the Inter‐American Court of Human Rights”, 12(5) German Law Journal (2011), p. 1215. D. García-Sayán, “The Inter-American Court and Constitutionalism in Latin America”, 89 Texas Law Review (2011), pp. 1851–1852. IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 165. R. McCorquodale, R. and R. La Forgia, “Taking of the Blindfolds: Torture by Non-State Actors”, 1(2) Human Rights Law Review (2001), p. 200. Note that the procedural obligation may imply the existence of other procedural mechanisms such as private prosecution or an effective judicial forum for the resolution of the matter. J. Rogers, “Reconstructing the Exercise of Prosecutorial Discretion in England”, 26(4) ­Oxford Journal of Legal Studies (2006), p. 776.

3

Introduction State agent or private party (John) ill-treatment or abuse

Holder of the right not to be ill-treated or abused (Mary) procedural obligation

The State

criminal procedure

Victim (Mary) effective application of criminal-law mechanisms

Accused (John) due process guarantees

Figure 1.1 Structure of the charging process from a human rights perspective

protection of a person, rather than a hypothetical public interest,11 through the application of criminal-law mechanisms.12 From the methodological point of view this change in approach to the reasons underlying the function of criminal prosecution in the structure of contemporary criminal procedure could be demonstrated with reference to the protection of physical integrity of a person in human rights law (Figure 1.1). In Figure 1.1 we can observe an individual, Mary, as a right-holder of the right not to be ill-treated or abused, who becomes a victim of John’s actions amounting to a criminal offence of, for example, inflicting grave bodily injuries. From the perspective of human rights law, John’s actions trigger a transformation of Mary’s rights. Specifically, by the operation of the relevant concepts of human rights law, which can in general be denoted as the procedural obligation, Mary’s right not to be ill-treated or abused is transformed into an obligation on the state to investigate and prosecute John for his actions against Mary. This results in the state’s compliance with that obligation by engaging the mechanism of

11

12

Public interest is generally considered to be that which ensures the general welfare of the community as a whole (D.D. Ntanda Nsereko, “Prosecutorial Discretion before National Courts and International Tribunals”, 3(1) Journal of International Criminal Justice (2005), p. 130). ECtHR (Judgment) Van der Heijden v. the Netherlands [gc], no. 42857/05, 3 April 2012, para. 62.

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criminal procedure. Within the criminal procedure Mary holds the position of the victim, and John holds the position of the accused. A structure is now created in which the state coordinates the “wrenching conflict of interests” between Mary and John through the mechanisms of criminal procedure. Thereby John, irrespective of any functional considerations inherent in the state policy in governing the process, maintains his human rights, which have now been transformed into due process rights.13 At the same time, the ensemble of the legally protected expectations and interests which, within the structure of criminal procedure, govern Mary’s relationship towards (primarily) the state and (then towards) John can be denoted as the requirement of effective application of criminal-law mechanisms in human rights protection. In this context the criminal procedure is a sphere in which the relevant human rights concepts operate. In other words, within this structure, John is prosecuted not only because he has acted contrary to the relevant criminal law prohibition14 but also because to prosecute is the state’s obligation implied in Mary’s human right not to be ill-treated or abused.15 This does not, however, mean that Mary has an (absolute) right to criminal prosecution of John as such. 13

14

15

The accused’s function in criminal proceedings is to attempt as best as he or she can to refute the allegations that he has or she committed an offence (J.A. Coutts (ed.), The Accused: A Comparative Study (London, Stevens & Sons 1996), p. 3). In addition, he or she has an interest in seeing that all his or her rights, in the law enforcement procedure in a democratic society, be fully recognised and respected (see further: A. Ashworth, “The ‘public interest’ element in prosecutions”, 595 Criminal Law Review (1987), p. 603). Note that the occurrence of a criminal offence in itself creates an attendant consequence of a potentially self-triggering legal effect of criminal prosecution (see further: M. Allen, Textbook on Criminal Law (Oxford, Oxford University Press 2011), p. 1). One should not however be oblivious of the fact that the public criminal prosecution is a historical latecomer although it indisputably has strong legal and social justification. To a certain extent it is a result of the neglected public interest and the necessity to overcome the alleged complexity and expensiveness of private prosecutions. Nevertheless, this does not exclude the possibility of a reverse process – in that the same considerations which led to the prevalence of public criminal prosecutions may again bring into play the predominance of private prosecutions. See further: C.B. Little and C.P. Sheffield, “Frontiers and Criminal Justice Systems: English Private Prosecution Societies and American Vigilantism in the Eighteenth and Nineteenth Centuries”, 48(6) American Sociological Review (1983), pp. 796–808. The interest of the victims of crime can be observed from two perspectives: as a private interest and as a particular instance of the general public interest (see further: J. Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties (Portland, Hart Publishing 2008), p. 10; C. De Than, “Positive Obligations under the European Convention on Human Rights. Towards the Human Rights of Victims and

Introduction

5

What is in issue in this context is the enforcement, through the mechanisms of criminal law, of the requisite human rights protection which cannot be otherwise achieved but through the application of those mechanisms, i.e. through investigation, prosecution and punishment of those responsible for the human rights offence. As this legal obligation must be satisfied by the state and is enforceable in the courts through the mechanisms of human rights adjudication,16 we could say that, on a logical and conceptual level, Mary has a right-claim to effective application of criminal-law mechanisms. As observed in the above example, this claim is an inherent component of more fundamental rights and thus, on a substantive and criterial level, it operates as a rights-based assertion. On the basis of these conceptual premises this study will assert that the right-claim to effective application of criminal-law mechanisms in practical reasoning of contemporary criminal justice discourse operates as an individualbased component of the procedural activity of criminal prosecution which, together with the public-based component of that activity, conforms with the overall structure of the function of criminal prosecution. A proper configuration of the two components in the overall structure is a precondition for the valid operation of the function of criminal prosecution in practical reasoning,17 and consequently a decisive factor in achieving a valid outcome of the criminal process. This is essentially a matter of procedural optimisation or a requirement to properly allocate the assigned relevance of the individual-based and public-based factors across the range of possibilities and considerations of a criminal process. Thus, for example, the state has an obligation to diligently institute the relevant procedures enforcing the requisite human rights protection through the mechanisms of criminal law but an unsuccessful outcome of such procedures, without any flaws or culpable failures18 on the part of the authorities in the optimisation of relevant factors, could not

16 17

18

Vulnerable Witnesses?”, 67(2) Journal of Criminal Law (2003), pp. 181–182; Gaston, Levasseur Bouloc, supra n. 1.2, p. 9; Ashworth, supra n. 1.13 p. 603). F. Tulkens, “The Paradoxical Relationship between Criminal Law and Human Rights”, 9 Journal of International Criminal Justice (2011), p. 584. See further: R. Aldana-Pindell, “Emerging Universality of Justiciable Victim’s Rights in the Criminal Process to Curtail Impunity for State-Sponsored Crimes”, 26(3) Human Rights Quarterly (2004), p. 621. These “flaws or culpable failures” could have various normative expressions in international human rights law. For instance, they are denoted as “significant flaws or culpable failures” in the context of Articles 3 and 8 echr (see ECtHR (Judgment) Söderman v. Sweden [gc], no. 5786/08, 12 November 2013, paras. 90–91) or “any deficiency” undermining the effectiveness of an investigation into a deprivation of life under Article 2 echr

6

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be considered as a failure in observing the right-claim to effective application of criminal-law mechanisms in human rights protection. In other words, the absence of flaws or culpable failures demonstrates effectiveness of the application of criminal-law mechanisms in human rights protection.19 The individual right-claim to application of criminal-law mechanisms is thus a question of the possibility to righteously claim that the relevant procedures enforcing the requisite human rights protection through the mechanisms of criminal law be applied without any flaws or culpable failures in the process. This study will search for solutions to procedural optimisation in the discourse of criminal law by showing that such optimisation could be achieved through two models of control of the discharge of function of criminal prosecution already existing in criminal law. One is the private prosecution model where the victim is allowed to vindicate his or her right-claim to effective application of criminal-law mechanisms by directly engaging the mechanisms of criminal prosecution. The other is the review model in which the victim puts the competent authorities in a position to re-examine their decisions in the light of his or her right-claim to effective application of criminal-law mechanisms in human rights protection. Before seeking to conceptualise an approach to address the above assertions, an examination of the doctrinal difficulties related to the legitimisation of criminal justice as a mechanism of human rights protection is in order. 2

A Paradoxical Relationship of Criminal Law and Human Rights as a Research Question

The above-contemplated Figure 1.1 shows how human rights in the application of criminal law have dual function. On the one hand, the human rights in the structure of criminal procedure vest the accused with legal rights which he or she can use to oppose the state repression in the investigation and prosecution of a crime. The function of human rights thus lies in neutralising the ap-

19

(see ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 233). Effectiveness in this context could be seen as an assessment of the practical consequences of proceedings in a particular case and an assessment of the efficiency of the procedure in itself (see Gardner’s contention of effectiveness of the echr system in: J.P. Gardner, “Procedural Incorporation: The Right to Remedies”, in J.P. Gardner (ed.), Aspects of Incorporation of the European Convention of Human Rights into Domestic Law (London, The British Institute of International and Comparative Law 1993), p. 87).

Introduction

7

plication of criminal-law mechanisms against the accused. This defensive role is denoted in legal theory as the shield function of human rights law.20 At the same time, human rights law mandates the state to criminalise, investigate, prosecute and, if appropriate, punish criminal attacks on human rights. The function of human rights is thus no longer defensive or neutralising, but rather an offensive one leading to the triggering of the criminal-law mechanisms. This role can be descriptively denoted as the sword function of human rights law.21 Both of these functions of human rights law, as observed by Françoise Tulkens, impose on the state legal obligations which are enforceable in the courts. This dialectic, in her view and in the view of some other authors, creates a paradoxical relationship between criminal law and human rights law since criminal law is aimed both at the protection and the limitation of human rights and freedoms. This means that criminal law, once considered as an “odious law” endangering human rights, has now become a mechanism through which human rights are protected and enforced.22 There is no need for now to enter the debate on the question of ambivalence of the relationship between the two functions of human rights law as we shall later return to that discussion to show that the two functions can be effectively optimised within the structure of criminal procedure. At this point we should confine the discussion to accepting that in the contemporary discourse of criminal justice there is a complexity of functions assigned to the mechanisms of criminal-law,23 and that the state, in performing its position of a coordinator of the process of resolution of the criminal matter, must find a balance between the use and non-use of criminal-law mechanisms.24

20 Tulkens, supra n. 1.16, pp. 571–579. See further: Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal ? (Brussels, Bruylant 2007). 21 Tulkens, supra n. 1.16, pp. 571–579. 22 Ibid., pp. 587 and 584; F. Ost, “Quand l’enfer se pave de bonnes intentions … A propos de la relation ambivalente du droit pénal et des droits de l’homme”, in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal ? (Brussels, Bruylant 2007), pp. 7–9. 23 C. Guillain and D. Vandermeersch, “Les droits de l’homme en droit pénal et en procédure pénale : effectivité ou alibi ?” in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal ? (Brussels, Bruylant 2007), p. 378. 24 M. Sorochinsky, “Prosecuting Torturers, Protecting Child Molesters: Toward a Power Balance Model of Criminal Process for International Human Rights Law”, 31(1) Michigan Journal of International Law (2009), p. 219.

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The discussion thus no longer turns around the question whether criminal law endangers or protects human rights, but is rather aimed at examining the manner in which criminal law endangers and protects human rights.25 Under such conceptual dichotomy this study can be placed within the latter sphere of the relationship; that is to say in the field of enquiry into the manner in which criminal law is used as a mechanism of human rights protection. In this context it should be noted that the human rights-adduced duty to engage criminal-law mechanisms in human rights protection has brought about a reversal of priorities in the contemporary criminal justice discourse by bringing into focus the need to vindicate human rights.26 Criminal law is now seen as an indispensible instrument of human rights protection,27 and criminal sanctions are considered as an essential element in maintaining the envisaged order in international human rights law.28 This is in reality a change of gravitation within the structure of criminal procedure induced by the rhetoric of human rights law.29 The interest has shifted from the relationship between the state and the accused to the relationship between the state and the victim. The legal incentives seeking the vindication of human rights through the mechanisms of criminal law have vested the victim with various functional rights, bearing on the criminal justice authorities’ exercise of the function of criminal prosecution.30 Human rights law is thus 25

M. Delmas-Marty, “Postface : d’un paradoxe l’autre”, in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal ? (Brussels, Bruylant 2007), p. 614. 26 Tulkens, supra n. 1.16, p. 594. 27 F. Vigano, “Les obligations de protection pénale des droits fondamentaux”, in G. GiudicelliDelage, S. Manacorda and J. Tricot (eds.), Devoir de punir ? Le système pénal face à la protection internationale du droit à la vie (Paris, Société de législation comparée 2013), p. 61. 28 J.N. Maogoto, “Now you See, Now You Don’t – The State’s Duty to Punish Disappearances and Extra-Judicial Executions”, Australian International Law Journal (2002), p. 199. Serious human rights infrigments are thus generally seen in international law not only as harm to the public order but also to individual human rights (see further: S.J.C. de Ochoa, The Rights of Victims in Criminal Justice Proceedings for Serious Human Rights Violations (Leiden, Martinus Nijhoff Publishers 2013), p. 13). 29 See further: Ost, supra n. 1.22; Y. Cartuyvels, “Droits de l’homme et droit pénal, un retournement?”, in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal? (Brussels, Bruylant 2007), pp. 14 and 24–25. 30 Victims are traditionally seen as holders of participatory rights in the context of criminal procedure, which are always accessory to the efforts in exercising the public-prerogative of criminal prosecution (B.L. Gershman, “Prosecutorial Ethics and Victims’ Rights: The

Introduction

9

no longer perceived as a “villain’s character” preventing the vindication of human rights by creating a shield for the protection of the accused, but rather as a mechanism empowering the victim to influence the prosecutorial decision-making.31 There are several difficulties in implementing the theoretical construction of the function of criminal prosecution, or even broadly speaking criminal ­justice, as a mechanism of human rights protection at the level of national ­jurisdictions. Such difficulties can be observed in the frictions which often arise between an inadequate application of criminal-law mechanisms in ­human rights protection at the domestic level and the pertinent international human rights requirements. The extensive practice of international human rights courts, some of which, like the ECtHR, have already developed a subtle body of case-law on the matter, is the most appropriate and sufficient evidence of this assertion. These frictions primarily arise due to an unfortunate reality that very often international human rights law becomes involved in the national processes only after a violation of the relevant human rights requirements has already occurred.32 This, in turn, can be seen as a consequence of three central impediments to an effective construction of criminal law as a mechanism of human rights protection. The first relates to the fact that the domestic systems are not yet fully informed of their human rights obligations in this context.33 The second relates to the fact that human rights concepts are often over-progressive for an otherwise conservative criminal law discourse.34 The third lies in the Prosecutor’s Duty of Neutrality”, 9(3) Lewis & Clark Law Review (2005), pp. 560–561). However, the change in gravitation has brought about the contemplation of various victim-centred procedures and the designation of functional rights to the position of the victim (V. Michel-Luviano, Access to Justice, Victims’ Rights, and Private Prosecution in Latin America: The Cases of Chile, Guatemala, and Mexico (Dissertation, University of Minnesota 2012); Sorochinsky, supra n. 1.24, pp. 162–163). 31 See further: K. Starmer, “Human Rights and Victims: The Untold Story of the Human Rights Act”, 3 European Human Rights Law Review (2014), pp. 215–221. 32 Rehman, supra n. 1.5, p. 513. 33 N. Roht-Arriaza, “Combating Impunity: Some Thoughts on the Way Forward”, 59(4) Law and Contemporary Problems (1996), p. 96. 34 See further: B. McGonigle Leyh, “The Right to Truth in International Criminal Proceedings: An Indeterminate Concept from Human Rights Law”, in Y. Haeck, B. McGonigle Leyh, C. Burbano-Herrera and D. Contreras-Garduño (eds.), The Realisation of Human Rights: When Theory Meets Practice. Studies in Honour of Leo Zwaak (Cambridge, Intersentia 2013), p. 311; S. Manacorda, “Internationalisation du droit”, in G. GiudicelliDelage, S. Manacorda and J. Tricot (eds.), Devoir de punir ? Le système pénal face à la

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ambiguity of the concepts involved in human rights law and the manner in which they develop in practice of international human rights bodies.35 Ideally, human rights requirements are enforced at the level of implementation of a relevant national legislative framework related to the legal

35

protection internationale du droit à la vie (Paris, Société de législation comparée 2013), pp. 28–29. An example of a conceptual perplexity introduced in the ECtHR case-law can be observed in the statement made in the case of Öneryildiz v. Turkey that “[i]t should in no way be inferred from [the general concept of positive obligations] that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence” (see ECtHR (Judgment) Öneryildiz v. Turkey [gc], no. 48939/99, 30 November 2004, para. 96). This statement was borrowed from the case-law under Article 6 echr (right to a fair trial) where it perhaps follows from the textual interpretation of that provision which guarantees the right to a fair trial only in respect of one’s “civil rights and obligations” or “any criminal charge against him” (see ECtHR (Judgment) Perez v. France [gc], no. 47287/99, 12 February 2004, para. 70). See further: Tulkens, supra n. 1.16, p. 592; S. Trechsel, Human Rights in Criminal Proceedings (Oxford, Oxford University Press 2009), p. 41. However, in the same cited paragraph of the Öneryildiz case the ECtHR asserted that “the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished.” It thus implied in the same paragraph the following: under Article 2 echr there is no right for a victim to have third parties prosecuted or sentenced for a life-endangering offence, but the victim may rely on the same provision claiming the domestic authorities’ duty not to allow life-endangering offences to go unpunished. The extent to which such an ambiguity complicates matters could be observed in the Jeronovičs v. Latvia case, where the principal issue was the state’s duty to investigate and, if appropriate, prosecute an instance of police ill-treatment following the ECtHR’s striking out of the case from its list of cases on the basis of the Government’s acknowledgment of a violation and their undertaking to pay damages. In that case the Government argued that “the applicant’s complaints were incompatible ratione materiae with the provisions of the ­Convention since the Convention neither conferred any right as such to have third parties prosecuted or sentenced for a criminal offence, nor did it guarantee an enforceable right to obtain the reopening of criminal proceedings that had been terminated.” However, the ­ECtHR, after having found that the domestic authorities’ investigation into the ­ill-treatment fell short of the requirement of effectiveness, dismissed the Government’s objection and found a violation of Article 3 echr under its procedural limb (see ECtHR (Judgment) Jeronovičs v. Latvia [gc], no. 44898/10, 5 July 2016, paras. 40 and 123–124). These conceptual difficulties appear to be based on a miscomprehension of the normative proceduralisation with regard to “civil rights and obligations” or “criminal charge against an individual” guaranteed under Article 6 echr, and the conceptual proceduralisation as a derived component of substantive rights. As it will be later seen, this was to an extent averted but never adequately explained in the subsequent ECtHR case-law (see, for instance, ECtHR (Judgment) Baştürk v. Turkey, no. 49742/09, 28 April 2015, paras. 29–30, 33–34).

Introduction

11

matter in question. Thus, one could argue that the civil, administrative or criminal mechanisms of the applicable domestic framework are simply means of enforcement of the human rights protection. This generally holds true irrespective of whether such protection takes on a positive or negative form. Nevertheless, in the former case the domestic legal framework is used to enforce or to put into effect the human rights requirements, whereas in the latter case the human rights requirements should inspire (by limiting or otherwise) the domestic procedure leading to an interference with the human rights of an individual.36 A particularity of human rights, at least in their contemporary setting, is that they can be enforced at the international level.37 Thus, in the event of a failure of the human rights protection at the level of national jurisdiction, an individual can bring his or her complaint before a forum of international adjudication, which will in the ordinary course of action, if the complainant’s legal arguments have a basis in international human rights law, bring about the enforcement of the human rights protection at the national level through the mechanism of enforcement of the state’s obligations under international law. An example of such model of enforcement of human rights is the system related to the application of the echr, to which we will return in great detail in the further discussions. The protection of human rights through the mechanisms of criminal law is no exception in this context. In the shield scenario the protection is enforced by limiting the state repressive powers in relation to an individual suspected, or convicted of, having committed an offence, while in the sword scenario the protection rests in the application of criminal-law mechanisms in human rights protection. The latter aspect of protection, which is of our interest in the present study, generally has two limbs: (1) criminalisation of a conduct endangering human rights (substantive protection), and (2) enforcement of the substantive protection by putting the criminal-law mechanisms into action (procedural obligation).38

36 37

38

K.O. Odeku, “Criminal Responsibility for Torture: A Human Rights Analysis”, 15(2) Anthropologist (2013), p. 126. See further: A. Huneeus, “International Criminal Law by Other Means: The QuasiCriminal Jurisdiction of the Human Rights Courts”, 107 American Journal of International Law (2013), pp. 1–44. See further: H.M. Osofsky, “Domesticating International Criminal Law: Bringing Human Rights Violators to Justice”, 107(1) The Yale Law Journal (1997), pp. 191–226; Dumont, supra n. 1.5, p. 53.

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Viewed from this perspective the function of criminal procedure is to reinforce and secure practical respect for substantive human rights.39 Hence, the focus of the procedure is on the harm done to the victim,40 rather than on an often undifferentiated public interest in the prosecution of crime. Procedural mechanisms should therefore seek to enforce the human rights protection by effective investigation, prosecution and punishment of human rights offences. Failing these requirements, which are often seen as a duty to punish,41 the state runs directly counter to its obligation to secure the respect for and protection of human rights.42 There is thus a nexus between the application of criminallaw mechanisms and the protection of human rights. In addition to this, the victim could have a claim of a private law nature against the offender, but that is a separate matter which should not be confused with the duty to enforce the human rights protection through the mechanisms of criminal law.43 Readers versed in the theory and doctrine of criminal law are likely to be perplexed by these statements, for whatever the conventional approach to criminal law, and in particular criminal procedure, they evoke, in trying to fit the human rights requirements in the criminal law perspective, they are bound to encounter to some important conceptual impediments. Generally speaking from the perspective of criminal law, a criminal offence is a state of facts prescribed and punishable by criminal law because it causes disturbance to a social order.44 The social order in this sense is the sum of rules, legal and extra-legal norms, prohibitions and commands, which govern social life.45 A criminal offence is also a social reality since it is always an act of a person against the society.46 Crimes are public rather than individual wrongs 39

A. Mowbray, “Duties of Investigation under the European Convention on Human Rights”, 51(2) International and Comparative Law Quarterly (2002), p. 447. 40 Odeku, supra n. 1.36, p. 127. 41 G. Giudicelli-Delage, S. Manacorda and J. Tricot (eds.), Devoir de punir ? Le système pénal face à la protection internationale du droit à la vie (Paris, Société de législation comparée 2013), p. 13. 42 D.F. Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime”, 100(8) The Yale Law Journal (1991), p. 2552. Note that there may be exceptions to the duty to punish, which will be also discussed in the study. See further: D.F. Orentlicher, “Addressing Gross Human Rights Abuses: Punishment and Victim Compensation”, 26 Studies in Transnational Legal Policy (1994), p. 436. 43 Ibid., p. 427. 44 Gaston, Levasseur and Bouloc, supra n. 1.2, p. 5. 45 H.-H. Jescheck and T. Weigend, Lehrbuch des Strafrechts, Allgemeiner Teil (Berlin, Duncker & Humblot 1996), § 1 i 1. 46 Gaston, Levasseur and Bouloc, supra n. 1.2, p. 9.

Introduction

13

and thus the public interest is always preferred over the interest of the individual affected by the offence. This holds true irrespective of whether a crime is defined with regard to interests affected by it, in which there is a distinct harm to the community involved in the occurrence of the offence, or whether it is conceived as a wrong against the community and the individual victim.47 From this perspective criminal procedure is a public matter initiated by the community with regard to the question “whether a proceeding is in the public interest.”48 In this sense the criminal procedure aims to determine the following: (1) Has a criminal offence been committed?; (2) Who is the accused?; (3) Is the accused guilty?; (4) Have all legal prerequisites to apply a criminal sentence been met and what is the appropriate sentence in a given case?49 A further simplification of this definition would be to say that criminal procedure is a process of discovering and identifying the perpetrator and establishing his guilt or innocence – that it is merely a concretisation of criminal law or criminal law in action. As such, it is a mechanism of transaction between an offence and the appropriate sanction.50 Criminal law in general can have the function of crime control and suppression or the function of protection of the rights of the accused.51 It is, as a matter of principle, more oriented towards the defendant because it governs the relationship between the public, vested with the right to prosecute the wrongdoing, and the defendant, who has presumably caused the wrongdoing. The victim can have some saying in the process but he or she cannot compromise the public-interest element implicit in criminal prosecution. Any individual-based claim which the victim might have, should be addressed in a private-law dispute. Holding otherwise, and allowing the victims to have a

47

G. Lamond, “What is Crime?”, 27(4) Oxford Journal of Legal Studies (2007), p. 614. See further: D. Husak, “Gardner on the Philosophy of Criminal Law”, 29(1) Oxford Journal of Legal Studies (2009), pp. 169–187; D. Husak, “The Criminal Law as Last Resort”, 24(2) Oxford Journal of Legal Studies (2004), pp. 207–235; K. Thomas, “Interpersonal Power in the Criminal System”, 50 American Criminal Law Review (2013), pp. 247–276; J. Edwards and A. Simester, “What is Public About Crime?”, Oxford Journal of Legal Studies (2016), pp. 1–29. 48 Lamond, supra n. 1.47, p. 620. 49 B. Pavišić, Komentar Zakona o kaznenom postupku (Rijeka, Žagar 2005), p. 3. 50 J. Larguier, La procédure pénale (Paris, Presses universitaires de France 2001), p. 4. 51 H.L. Packer, The Limits of the Criminal Sanction (Stanford, Stanford University Press 1968), pp. 149–239.

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functional say in the process, may not only impair the rights of defendants but also disturb the conceptual foundation of criminal procedure.52 This does not mean that various procedural forms of criminal process oriented towards the wider recognition of victims’ participatory rights cannot be accepted.53 There is thus, from the perspective of the conventional approach to criminal law, no conceptual contradiction in acknowledging the existence of trends such as victim-oriented procedures, which, generally speaking, fit into the established architecture of criminal process. But this does not mean that criminal law can be used as a mechanism of recognition and enforcement of human rights of an individual and that the criminal procedure may be seen as implementation of the substantive human rights protection. Any such approach, from the perspective of conventional thinking, should be rejected as it weakens the human rights protection of the accused and opens door for constructing various limitations on the rights of suspects and defendants in criminal proceedings, such as, for example, an over-expansive “criminal law of the enemy” doctrine.54 Observing the above divergences in the approach to the function of criminal law in human rights protection helps to explain why, irrespective of a wide recognition of the procedural obligation as a legal concept and some evidence of its domestication in national criminal justice,55 it is safe to assert that ­domestic legislation and standards are far from a full compliance with the ­relevant human rights requirements on the matter.56 We should reject as an oversimplification any arguments which might suggest that the problem is confined to the question of the necessity to reconstruct

52 Lamond, supra n. 1.47, p. 620; C. Hoyle and L. Ullrich, “New Court, New Justice? The Evolution of ‘Justice for Victims’ at Domestic Courts and at the International Criminal Court”, 12 Journal of International Criminal Justice (2014), p. 684. 53 See further: K. Bárd, “Victims’ Rights and Due Process”, in R. Uitz (ed.), Freedom and Its Enemies (The Hague, Eleven International Publishing 2015), pp. 189–193, 195–198. 54 P.H. van Kempen, “Four Concepts of Security – A Human Rights Perspective”, 13(1) H ­ uman Rights Law Review (2013), pp. 19–20; F.F. Basch, “The Doctrine of the Inter-American Court of Human Rights Regarding States’ Duty to Punish Human Rights Violations and Its Dangers”, 23(1) American University International Law Review (2007), pp. 213–217. 55 R. Ariav, “National Investigations of Human Rights Between National and International Law”, 4(3) Goettingen Journal of International Law (2012), pp. 853–871. 56 J. Chevalier-Watts, “Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State”, 21(3) European Journal of International Law (2010), p. 721.

Introduction

15

the criminal justice institutions.57 Rather, the problem exists on a conceptual level. It lies in the divergence between the underlying rationale of the concept of procedural obligation in human rights law and the criminal law discourse. In other words, the function of criminal prosecution, and for that matter criminal procedure, is conceptually not construed in the criminal law discourse as a mechanism designed to enforce and protect human rights. We have already observed the reasons for this: lack of systematised information on the human rights requirements; over-ambitiousness of some concepts of human rights law faced with an inflexible criminal law discourse; and ambiguity of certain human rights concepts. This study will seek to tackle these issues by identifying, systematising and presenting the relevant human rights requirements, and constructing a framework in which the human rights-based element and the public-based prerogative of criminal prosecution could coexist within the same procedural structure. 3

Methodological Issues

3.1 The Scope of the Study This study seeks to define the requirement of effective application of criminal-law mechanisms in human rights protection at the level of national criminal justice systems, in particular the extent to which the features of such requirement determine the contemporary understanding of the function of criminal prosecution. It is a study on nature, content and scope of human rights protection through the application of criminal-law mechanisms seeking to differentiate and clarify the relevant relationships construed within the sword function of human rights law. The preceding discussion has shown that the sword function of human rights law operates at two levels. The first, which can be denoted as substantive, relates to the questions of criminalisation of a conduct endangering human rights, while the second is commonly conceived as a procedural obligation since it concerns the transaction of the substantive criminal-law protection into a concrete action of vindication of the infringed right. The relationship between the two levels is one of autonomy and connectedness. Each could operate as a separate and autonomous set of requirements. At the same time, legal requirements developing within the first level are preeminent to those of the second, but they become legal reality only through the rela57

N. Roht-Arriaza, “State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law”, 78(2) California Law Review (1990), p. 513.

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tions established on the basis of the legal requirements conceptualised at the second level. Concentrating an academic research study on one of the two levels, and provided that the researcher seeks to avoid the fallacies of ambiguity and indistinctness of a discourse, significantly impacts the structure and methodology of the research. Hence, any research seeking to explain the necessity of the protection of human rights through the criminalisation of a conduct endangering those rights will have to look at the complex questions related to, for example, the ultima ratio societas argument, the principle of legality or the adequacy of alternative responses to human rights offences in the context of criminal justice.58 On the other hand, a study, such as the present one, which is focused on the procedural aspects of protection, can take the question of substantive protection of human rights through criminalisation as a given reality and concentrate on observing the manner in which such protection is enforced. In other words, it can assume that there is already a system of effective criminal-law mechanisms in contemporary criminal justice systems – the existence of adequate provisions protecting the human rights of an individual from serious attacks of criminal nature, backed-up by the law-enforcement machinery for the prevention, suppression and punishment of those responsible for breaches of such provisions – and examine what would be the requirement of their effective application. On this conceptual basis, the study at hand will not seek to explore why or whether certain conduct endangering human rights should be protected by the application of criminal-law mechanisms. Rather it will attempt to conceptualise a legal framework through which such protection can operate in the practical reasoning of the criminal law discourse. Thus, when referring to the procedural obligation this study will principally observe a separate and autonomous duty to investigate, prosecute and punish human rights offences which has developed in international human rights law, and will examine how such an obligation, once it has been ascertained to exist, should operate in criminal procedure. However, importantly to note, the study is concerned with the criminal-law mechanisms in narrow sense, excluding the auxiliary means of criminal-law protection, such as various criminological activities, social or psychological protection and support, or prophylactic police or social activities in the sphere of criminal justice. 58

See for instance: Cartuyvels, Dumont, Ost, Van de Kerchove and Van Drooghenbroeck, supra n. 1.20; A. Ashworth, Positive Obligations in Criminal Law (Oxford, Hart Publishing 2013).

Introduction

17

In seeking to address the matter in strict analytical terms, the study will further break down the concept of procedural obligation into two limbs or requirements: applicability and effectiveness. The problem of applicability looks at two central questions: (1) which breaches of human rights, and in what circumstances, trigger the procedural obligation (human rights offences); and (2) what is the legal nature and strength of that obligation. The requirement of effectiveness is essentially concerned with the following questions: (1) what are the elements of the procedural obligation; and (2) what is the necessary threshold that would allow one to conclude that the application of criminallaw mechanisms in human rights protection was (in)effective. The latter requirement is particularly complex and, as we shall see, in general consists of the primary obligation: to investigate and prosecute (and if appropriate punish), and the secondary one or, as denoted by Tulkens, subtle aspects of effectiveness.59 In order to avoid any accusations of disloyalty to a rigorous analytical approach, a digression is in order. From the methodological perspective the two questions are interrelated and a clear distinction between them cannot be drawn. Indeed, as has already been asserted in the schematic presentation of the relevant legal discourse from the perspective of human rights law (Figure 1.1), the progression from the level of substantive protection of a right to its enforcement in the context of criminal procedure can in general be denoted as effective application of criminal-law mechanisms. This concept thus encompasses the requirements of applicability and effectiveness. Seeking to explain how it operates in the context of criminal law discourse will inevitably lead to an intersection of matters that are strictly speaking related to the analysis of only one of the two aspects of the procedural protection. The asserted dedication to a strict analytical approach to the concept of procedural obligation mandates for a clear positioning of this study within one of the legal fields from which the requirement of human rights protection through the mechanisms of criminal law may follow. This obviously concerns international human rights law, but may also relate to international humanitarian law60 and international criminal law.61 Given that the relations between

59 Tulkens, supra n. 1.16, p. 586. 60 F. Lafontaine, “No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoval Case before the Supreme Court of Chile”, 3 Journal of International Criminal Justice (2005), pp. 473–476. 61 M. Nowak, “Strengthening the Rule of Law: The Right to an Effective Remedy for Victims of Human Rights Violations”, in J. Kozma, A. Müller-Funk and M. Nowak (eds.), Vienna +20

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these legal disciplines may be marked with significant gaps,62 and in order to avoid any fallacies in the analysis, this study will seek to elucidate the structure of the relevant conceptions in the context of international human rights law, and, naturally, its related domestic discourse. It will thereby, however, open door for a further research into the manner in which the relevant conceptions of international human rights law could be accommodated in international humanitarian and criminal law. As the introductory analysis has shown, human rights law determines the scope and nature of the concept of effective application of criminal-law mechanisms in human rights protection while criminal law frames the area of its application. These two legal fields are therefore interrelated and thus the relevant doctrinal assertions putting them in a correlation form the methodological basis of the study. At the same time, it appears necessary to verify their theoretical prepositions and to accept or reject manifestly inapplicable or erroneous assertions. That is, in a sense, methodological method of the study.63 The relevant prepositions of philosophy of law will be used in this context with a view of filling the conceptual gaps in the merging of the diverse concepts of human rights law and criminal law. Moreover, the comparative method will be used in order to ascertain the operation of the conceived conceptual assertions in the reality of the relevant criminal justice discourse. Lastly, but importantly, it should be noted that although the procedural obligation in human rights law, when observed from the perspective of criminal law, is to the benefit of victims of crime, this is not a study on crime victims’ rights. This study is concerned with functions rather than the actors and institutions of criminal justice system. Accordingly, while there is a certain overlap in the subject of inquiry between this study and the relevant studies on the latter two aspects of criminal process, it is necessary to distinguish the disparity of their goals, terminologies and applicable methodologies. 3.2 Methodological Choices 3.2.1 Human Rights Offences The study goes beyond the requirement of adequate criminal-law protection concerning gross, systemic and widespread violations of human rights, com-

62 63

Advancing the Protection of Human Rights: Achievements, Challenges and Perspectives 20 Years after the World Conference (Wien, Intersentia 2014), pp. 85–86. M.C. Bassiouni, “International Recognition of Victims’ Rights”, 6(2) Human Rights Law Review (2006), p. 205. See further: K. Popper, The Two Fundamental Problems of the Theory of Knowledge (New York, Routlage 2009), p. 7.

Introduction

19

monly found in the state of war or other political and social instabilities and unrests, and rather extends the scope of its examination to the procedural obligation in cases of human rights offences occurring by the virtue of actions or omissions of state officials or private individuals in the sphere of ordinary functioning of modern society. The body of case-law developed by the international human rights courts (particularly the ECtHR), and other international human rights supervisory bodies, demonstrates that this is no less demanding task to legal theory and practice, particularly given the recurrence and nondiscriminative choice of victims of such human rights offences even in the most advanced democratic societies. The term human rights offences64 within the meaning of this study denotes all criminal breaches of human rights, irrespective of whether they are committed by the state or by a private party,65 which attain the minimum level of severity necessary to attract the specific heightened protection under international human rights law and which should therefore constitute a criminal offence under the relevant domestic criminal law.66 The specific breaches of human rights amounting to human rights offences will be identified and presented in the context of the analysis of applicability of the procedural obligation. By a negative inference, all other breaches of human rights where international human rights law does not require the application of criminal-law mechanisms in securing an effective human rights protection do not fall under the concept of human rights offences. It may therefore be the case that the domestic criminal law penalises certain conduct breaching human rights in respect of which the applicable human rights standards do not require the application of criminal law mechanisms in securing the requisite level of human 64

65

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The terms criminal offence and offence will be used interchangeably to denote any criminal offence, or a crime, or any criminal offence of lesser grade, as well as any other act punishable as a crime, as the case may be and whatever the prescribed penalty may be (B.A. Garner (ed.), Black’s Law Dictionary (St. Paul Minnesota, Thomson Reuters 2004), p. 1110). See further: M. López-Rey, “Crime and Human Rights”, 42 Federal Probation (1978), p. 11. In view of the developments in international human rights law there is no basis for excluding the breaches of human rights by private parties from the discussions on the procedural obligation (Aldana-Pindell, supra n. 1.17, p. 607). Note, however, that some studies have limited the scope of the term “human rights crimes” to crime committed by state agents (Michel-Luviano, supra n. 1.30, p. 35). See further: Section ii (3) of the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations of 30 March 2011.

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rights protection,67 which will fall out of the category of human rights offences within the meaning of this study. The same will be true for such breaches of human rights where neither the domestic law nor international law require a protection through the mechanisms of criminal law.68 In this context it is salutary to reiterate that this study is not concerned with the necessity of criminalisation of a certain conduct endangering human rights (substantive protection) but only with the question of the manner in which such a substantive protection is put into action. It will therefore, to the extent practicably possible, refrain from an analysis of the reasons underlying the necessity of criminalisation of a certain conduct from the perspective of human rights law, and take the existence of such a criminalisation as a given reality. The examination of the procedural obligation with regard to human rights offences suggests a broader scope of the study distinguishing it from those studies dealing with serious human rights violations such as extra-judicial, summary, or arbitrary executions, enforced disappearances, torture and other breaches of personal integrity;69 or grave human rights violations such as disappearances and death squad killings;70 or gross violations of human rights law, which could concern attacks on life, physical integrity and other matters essential to the human person and to human dignity71 or state-sponsored mass

67

Such as, for example, bribe-taking of a judge in the criminal proceedings leading to a bias and arbitrary conviction in breach of the right to a fair trial under Article 6 echr. In almost every domestic system this would amount to a criminal offence, which would necessitate investigation and prosecution of those responsible. However, as the law currently stands, no obligation of that kind would arise under the echr. 68 This will, for instance, be the case if a pre-trial detention of an accused was ordered on the basis of an erroneous assessment of the relevant and sufficient reasons for his or her detention on remand. In the ordinary circumstances, such a conduct of an officer ordering the detention would not amount to a criminal offence under the relevant domestic law nor would an obligation to investigate and prosecute such a conduct arise under the right to liberty and security under Article 5 echr (see further: infra 4.4). 69 A. Siebert-Fohr, Prosecuting Serious Human Rights Violations (Oxford, Oxford University Press 2009), p. 224. 70 Roht-Arriaza, supra n. 1.57, p. 452. 71 Bassiouni, supra n. 1.62, p. 251.

Introduction

21

atrocities;72 as well as such criminal violations of human rights which include only “torture, extra-legal executions, or disappearances.”73 This wider scope of the study is an attempt to avoid the fallacy of neglecting the fact that there are essentially two modalities of crime possibly affecting human rights. On the one hand, there are ordinary crimes directed against the integrity of a person, his or her property, family and the public order and normal functioning of the society; and, on the other hand, there are crimes committed under the influence of certain ideological, political or revolutionary paradigm.74 The latter category of crimes could arguably be said to amount to gross human rights violations. They can be distinguished from the former category comprising most frequent ordinary modalities of crimes affecting human rights such as murder, various injuries damaging the health of an individual, sexual abuses, attacks against the mental integrity, destruction and appropriation of property, damage, offences against personal liberty, inhuman and degrading treatment or punishment, forced labour, illegal or unjustified interference with private, family and occupational life, illegal expulsions, renditions and other immigration abuses, and crimes affecting social stability and security.75 Moreover, limiting the analysis of the procedural obligation to the most serious or grave offences against human rights would be contrary to the reality of international human rights law which recognises the existence of the procedural obligation in cases such as a minor conflict on the playground,76 road accidents,77 burglaries,78 or medical negligence.79 More importantly, approaching the problem only from the perspective of gross human rights violations, or any other similar concept, introduces fragmentation which lies at the heart of the problem related to the impossibility to conceptualise the applica72

R. Aldana-Pindell, “In Vindication of Justiciable Victims’ Rights to Truth and Justice for State-Sponsored Crime”, 35(5) Vanderbilt Journal of Transnational Law (2002), p. 1409. See further for tentative criteria for identifying gross human rights violations: C.M. Quiroga, The Battle of Human Rights: Gross, Systemic Violations and the Inter-American System (Dordrecht, Martinus Nijhoff Publishers 1998), pp. 11–16. 73 N.S. Rodley, “The International Legal Consequences of Torture, Extra-Legal Execution, and Disappearance”, in E.L. Lutz, H. Hannum and K.J. Burke (eds.), New Directions in Human Rights (Philadelphia, University of Pennsylvania Press 1989), p. 168. 74 López-Rey, supra n. 1.65, p. 12. 75 Ibid., p. 13. 76 ECtHR (Judgment) Remetin v. Croatia, no. 29525/10, 11 December 2012. 77 ECtHR (Decision) Al Fayed v. France, no. 38501/02, 27 September 2007. 78 ECtHR (Judgment) Blumberga v. Latvia, no. 70930/01, 14 October 2008. 79 IACtHR (Judgment) Suárez Peralta v. Ecuador, 21 May 2013.

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tion of criminal-law mechanisms as a means of human rights protection in the discourse of criminal law. By using the term human rights offences, the study will attempt (to the extent practicably possible) to avoid the fallacy of using the term human rights violations when referring to the infringements of individual human rights that warrant criminal protection. Human rights obligations are obligations of a “special character” which states, bound by the relevant international human rights law, are committed to respect to all persons within their jurisdictions.80 Put differently, in the most general terms, international human rights law, in relations between individuals, has an indirect horizontal effect under which the state may be liable only for shortcomings in protecting individuals from other individuals.81 Consequently, a violation of human rights in relations between individuals could occur only if the state, that has jurisdiction over them, fails to protect one individual against the other. If one individual, acting in his private capacity, could violate human rights of another individual, that would mean that an international human rights treaty providing for such a right would substitute for domestic criminal or civil law, which is not possible.82 The term human rights violations could perhaps appropriately denote statesponsored human rights crimes. But even then, when discussing the obligation of effective application of criminal-law mechanisms, this term could create confusion with the violation of the procedural obligation, which is, as we have already observed, a separate and autonomous duty. 3.2.2 The Sources of International Human Rights Law The obligation to investigate, prosecute and punish human rights offences is provided in various universal and regional treaties and documents of international human rights law, although, as argued in the doctrine, this obligation, save for the mechanisms of the echr and the achr, lacks any effective enforcement.83 It could be therefore asserted that although the relevant international materials, other than the echr, the achr and potentially the achpr, pro80

F. Mégret, “Nature of Obligations”, in D. Moeckli, S. Shah, S. Sivakumaran and D. Harris (eds.), International Human Rights Law (Oxford, Oxford University Press 2010), p. 124. 81 Ibid., p. 131. 82 ccpr (General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant) 26 May 2004, CCPR/C/21/Rev.1/Add.13, para. 8. 83 Bassiouni, supra n. 1.62, p. 205.

Introduction

23

vide for desirable and constructive arguments for a further development of the procedural obligation in human rights law and practice, they principally emerge either as soft law or as treaty stipulations lacking effective enforcement measures,84 which could be also, under the realist approach in theory of international law,85 classified as a form of soft law because they lack an independent mechanism with the effective enforcement powers.86 Given that this study is concerned with the question of domestication87 or enforcement of the concept of procedural obligation in the domestic criminal justice systems, under the influence of the realist approach,88 all these instruments will be observed as soft law instruments. Accordingly, on the basis of the assumption that there is no clear-cut distinction between soft and hard law, and that no solution in assigning an instrument in to either category should raise any issue as long as it is clear what is meant by soft and what by hard law,89 for the purpose of this study the term soft law instruments will encompass all those relevant international political 84 85

86 87

88

89

Ibid., p. 246. There are in general three approaches to what constitutes soft law. First, the positivist approach, makes a distinction between hard and soft law on the basis that the latter is not formally binding although it may lead to a binding hard law. Second is the rationalist approach which relies on the possibility of effective enforcement when differentiating soft law, which cannot be enforced, and hard law, which can. The third approach is constructivist which places emphasis on the states’ interests formed through the processes of state interaction and facilitated by soft law (G.C. Shaffer and M.A. Pollack, “Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance”, 94(3) Minnesota Law Review (2010), pp. 707–708). K.W. Abbott and D. Sindal, “Hard and Soft Law in International Governance”, 54(3) International Organization (2000), p. 422. A methodological framework for such a process of domestication, as proposed by Harold Hongju Koh, is a complex occurrence which consists of four phases: interaction, interpretation, internalisation, and obedience. In particular, an interaction within a lawdeclaring forum forces interpretation or enunciation of the general applicable norm, which leads to internalisation of the new interpretation of this international norm in the domestic legal system, and ultimately results in obedience of such a norm as an internally recognised rule (H. Hongju Koh, “How is International Human Rights Law Enforced?”, 74(4) Indiana Law Journal (1999), p. 1414). The reason for adhering to the realist approach is entirely of a methodological nature. This study examines the nature of the procedural obligation not as a desirable argument for the respect of human rights but rather as an enforceable legal conception at the level of international adjudication and domestic criminal justice systems. A.E. Boyle, “Some Reflections on the Relationship of Treaties and Soft Law”, 48(4) International and Comparative Law Quarterly (1999), p. 902.

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undertakings that are not normative in that they create some clear and precise rules, as well as those instruments that, although perhaps drafted in a potentially normative manner, in reality provide for principles rather than enforceable obligations.90 These are essentially commitments that are more than a complete absence of undertaking at the international level, but which lack any form of effective enforcement mechanisms securing some level of compliance.91 They, nevertheless, create certain law-like consequences aimed at achieving functional cooperation between the states in reaching international goals on a particular matter.92 Through this function they enhance the understanding of relevant concepts in international human rights law, which is, in the concrete case, the obligation to investigate and prosecute human rights offences. This study will make a distinction between the soft law instruments and the instruments of soft enforcement. The latter term is borrowed from A.E. Boyle’s classification distinguishing between methods of dispute settlement in case of non-compliance with instruments of international law. Specifically, Boyle considers that compulsory binding settlement of disputes could be characterised as hard enforcement. The states may be responsible for the performance of their convention obligations, which, in the circumstances, gives them the power and imposes on them a duty to use their domestic criminal law mechanisms to enforce internationally agreed standards. On the other hand, under an international mechanism, the states may agree to the monitoring of their compliance with the treaty obligations through an independent third-party non-binding conciliation mechanism, or through some other form of noncompliance procedure involving other parties to the treaty. Both of these instances are marked by an attempt to find an agreeable solution, as opposed to engaging in adversarial litigation or claims for reparation. They should thus be considered as mechanisms of soft enforcement.93 Boyle’s classification is closely related to the question of direct and indirect impact of international human rights law. Douglass Cassel attributes the direct impact to the European system of human rights observance, pointing out that as a result of the practice of the ECtHR, the governments have revised their

90 91

Ibid., p. 907. A.T. Guzman and T.L. Meyer, “International Soft Law”, 2(1) Journal of Legal Analysis (2010), p. 183. 92 D. Shelton, “Soft law”, in D. Armstrong (ed.), Routledge Handbook of International Law (London, Routledge 2009), pp. 68–69. 93 Boyle, supra n. 1.89, p. 909.

Introduction

25

respective legislation and changed policies in some highly sensitive areas, such as, inter alia, criminal justice.94 As an example of indirect impact, Cassel cites the un human rights system which has developed through various reporting requirements leading to the reinforcement of public awareness, exposing violations of human rights and legitimising efforts to advance the human rights agenda by means of political pressure.95 For example, the decisions of the hrc do not carry any weight of law, not even concerning the dispute at issue, because the parties are not bound by an adverse decision (view or comment) of the hrc.96 Similar limitations, according to the commentators, are placed on the cat system, which is too dependent on the states’ disposition in a particular case, as well as on the ced, which is another international instrument lacking a mechanism that could impose adverse human rights judgments in cases of non-compliance with the guarantees provided in that Convention. Such mechanisms therefore do not have a forum which could competently establish the relevant facts and at the same time force the states to comply with the applicable human rights guarantees by providing redress and securing compliance with its decisions.97 Nevertheless, these international instruments are not devoid of any legal significance. Commentators explain that the hrc’s views elaborate on the ­obligations under the iccpr and thus shape the states’ expectations and contribute to the political development compatible with the relevant human rights standards. Accordingly, these mechanisms should not be automatically compared to binding systems, such as the one established under the echr, because that would mean ignoring their different institutional and political frameworks, and possible benefits in furtherance of international human rights law ­guarantees.98 In addition, the instruments of soft law and soft enforcement add to the understanding and completeness of the hard law mecha94

D. Cassel, “Does International Human Rights Law Make a Difference?”, 2(1) Chicago Journal of International Law (2001), p. 133. Note that Cassel attributes the “direct impact” also to the achr system. 95 Ibid., p. 132. 96 A.T. Guzman and T.L. Meyer, “International Common Law: The Soft Law of International Tribunals”, 9(2) Chicago Journal of International Law (2008), pp. 516 and 530. See further on the compliance with the hrc decisions: Open Society Initiative, From Judgment to Justice: Implementing International and Regional Human Rights Decisions (New York, Open Society Foundations 2010), p. 119. 97 Bassiouni, supra n. 1.62, p. 246; R.A. Sunga iii, “The Committee on Enforced Disappearances and its Monitoring Procedures”, 17(1) Deakin Law Review (2012), p. 178. 98 Guzman and Meyer, supra n. 1.96, pp. 532–534.

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nisms of international human rights law, such as the echr,99 and should thus form an essential part of the overall analysis of the relevant standards. It follows from the above discussion that with regard to the research aim and methodological assignment of this study, in seeking to elucidate the concept of procedural obligation in international human rights law and its functioning in the domestic criminal justice discourse, a distinction can be made between: the international material providing for principles and general normative stipulations on the matter (soft law);100 the international material envisaging models of soft enforcement;101 and the international systems with a direct impact (echr, achr and achpr).102 We can add to this arrangement, the eu instruments as mechanisms of a particular supranational commitment at the European level.103 The focus of the study is on the European system of direct impact of international human rights obligations on domestic criminal justice systems. This is primarily conditioned by the commitment to a narrow analytical approach on the matter and the fact, as already mentioned earlier, that the concept of procedural obligation under the echr has developed with regard to a variety of factual and legal situations; refining the scope of its applicability and effectiveness to a considerable extent. In this context, the relationship and interaction between different modalities of international human rights law, embedding the obligation of effective application of criminal-law mechanisms in human rights protection, enhance the interpretation of the echr standards, which is one step in the process of their full recognition and application at the level of domestic European criminal justice systems. This also allows a contextual interpretation of the echr which, in the structure of general interpretative rules of international law, has to be understood as implying interpretation within a framework of the entire legal system prevailing in contemporary international human rights law.104

99

F. Ni Aolain, “Evolving Jurisprudence of the European Convention concerning the Right to Life”, 19(1) Netherlands Quarterly of Human Rights (2001), p. 39. See further: ECtHR (Judgment) Marguš v. Croatia [gc], no. 4455/10, 27 May 2014, paras. 48–54. 100 Shelton, supra n. 1.92, p. 69. 101 Boyle, supra n. 1.89, p. 909; Bassiouni, supra n. 1.64, p. 246. 102 Cassel, supra n. 1.94, p. 133. 103 See further: G. de Búrca, “After the eu Charter of Fundamental Rights: The Court of J­ ustice as a Human Rights Adjudicator?”, 20(2) Maastricht Journal of European and Comparative Law (2013), p. 169. 104 icj (Advisory Opinion) Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276

Introduction

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On the basis of the above-discussed methodological premises, the study will proceed by observing the obligation to investigate and prosecute human rights offences following from: (1) the principal primary sources of soft law on the duty to investigate and prosecute human rights offences; (2) there central instruments of soft enforcement (iccpr, cat and ced); (3) the achr and the achpr systems as regional mechanisms of direct impact; and (4) the eu ­instruments as mechanisms of a particular supranational commitment. The intention of this analysis is not to be overly descriptive and exhaustive but to observe the manner in which the obligation to investigate and prosecute human rights offences is conceptualised in comparative human rights law. This analysis is therefore instrumental and conceptual rather than descriptive. The procedural obligation in the echr system of human rights protection is subjected to a separate analysis, which is amply comprehensive and exhaustive. It contains a critical assessment of all relevant landmark cases on the matter of procedural obligation and a differentiation of the relevant categories through which the procedural obligation should be observed. The echr law is analysed as it stands on 1 August 2016. 3.3 Structure of the Book The book is divided into further seven Chapters. Chapter 2 seeks to clarify the theoretical basis of the conception of procedural obligation in human rights law. It observes the process of proceduralisation of human rights and demonstrates its operation in practical reasoning of human rights law through the concepts of positive obligations, right to a remedy, and interpretative methods of reduction of the scope of a right to its inherent procedural component. A tentative proposal for a general conceptual framework of the procedural obligation is provided in this Chapter. On the basis of an analytical premise that the concept of procedural obligation should be observed from the perspective of its applicability and effectiveness, Chapter 3 examines the procedural obligation following from the variety of sources of international human rights. It systematises these sources in the methodological units by observing them as the soft law instruments; the instruments of soft enforcement; the instruments of direct impact; and the EU instruments as mechanisms of a particular supranational commitment. Chapter 4 applies the same approach in observing the law of the echr on the concept of procedural obligation. It analyses in detail the case-law of the

(1970), 21 June 1971, p. 31, para. 53; ECtHR (Judgment) Demir and Baykara v. Turkey [gc], no. 34503/97, 12 November 2008, para. 67.

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ECtHR related to the domestic authorities’ procedural obligation with regard to the occurrence of a human rights offence. Chapter 5 seeks to conceptualise a juridical construction of the concept of procedural obligation in practical reasoning and makes a tentative proposal for conceiving the correlative right to the procedural duty at issue as the rightclaim to effective application of criminal-law mechanisms in human rights protection. It, however, avoids making any premature conclusions on the substantive and criterial aspect of that right, opening door for its scrutiny under the considerations and particular factors which may challenge its theoreticallyconceived structure and sustainability in practical reasoning. This discussion is advanced in Chapter 6. The human rights component of the duty to investigate and prosecute human rights offences (conceived as the right-claim to effective application of criminal-law mechanisms) is assigned to two particular aspects of the public-based requirement related to the administration of criminal justice: the exercise of discretion in criminal prosecution; and the protection of the rights of the accused. Chapter 7 deals with the method of proper configuration of the human rights element and the public-based requirements implicit in the charging process. This configuration is conceived as the question of procedural optimisation, which, in practical reasoning, operates through two ideal models: the private prosecution model and the review model. The research results are presented in Chapter 8. An attempt is made in identifying and differentiating the central elements of the right-claim to effective application of criminal law mechanisms in human rights protection and its implementation in the discourse of contemporary criminal justice systems, as well as to identifying further research questions that arise in this context.

chapter 2

Procedural Obligation in the Multi-layered Structure of Human Rights 1

Proceduralisation of Human Rights

Contemporary theory and practice of international human rights law has recognised that almost every substantive human right implies a positive action of putting in place effective procedures capable of securing its enforcement.1 This positive action can be denoted as (positive) procedural obligation.2 In practical reasoning the procedural obligation should not be indiscriminately identified with positive obligation, which, as a specific legal concept in international human rights law, has a wider meaning and scope, and not necessarily the same aim and models of enforcement.3 Thus, unlike the positive obligation which, as a legal concept, also encompasses specific substantive requirements (substantive positive obligation), the concept of procedural obligation is associated with the question of proceduralisation of human rights. Proceduralisation denotes a process intended to reinforce the protection of a substantive right guaranteed in international human rights law.4 It is already widely accepted that the substantive and procedural aspects of human rights 1 F. Sudre, Droit européen et international des droits de l’homme (Paris, puf 2011), p. 239; E. Brems, “Procedural protection: An examination of procedural safeguards read into substantive Convention rights”, in E. Brems and J. Gerards (eds.), Shaping Rights in the echr (Cambridge, Cambridge University Press 2013), p. 138. 2 Although in the practice of international adjudication the term is commonly denoted as procedural obligation, in the doctrinal discourse the matter under discussion is often denoted as positive procedural obligation (Tulkens, supra n. 1.16, p. 585; O. Cahn, “Obligations positives procédurales et droit à la vie”, in G. Giudicelli-Delage, S. Manacorda and J. Tricot (eds.), Devoir de punir ? Le système pénal face à la protection internationale du droit à la vie (Paris, Société de législation comparée 2013), p. 235). See further for the use of the term “positive procedural obligation” in the ECtHR case-law: M. and M. v. Croatia, no. 10161/13, 3 September 2015, para. 147. 3 S. Rabinder, “Using Positive Obligations in Enforcing Convention Rights”, 13(2) Judicial Review (2008), p. 97. 4 E. Dubout, “La procéduralisation des obligations relatives aux droits fondamentaux substantiels par la Cour européenne des droits de l’homme”, 69 Revue trimestrielle des droits de l’homme (2007), p. 398.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_003

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norms operate as separate and autonomous duties.5 However, they are not in a conceptual disagreement but rather function in a dialogic manner as two conceptually distinct legal requirements.6 Proceduralisation comes into play in the case of negative and positive requirements of human rights protection and essentially operates with an ex ante and ex post effect. The ex ante effect relates to the procedures leading to the individual decisions interfering with human rights and to the development and operation of a legislative framework governing certain relations. The ex post effect relates to adequate and effective procedural responses to interferences with human rights which have already occurred.7 Through its ex post effect, proceduralisation is understood as a concept of genuine protection of substantive rights in theory and practice,8 and as a remedial measure for the infringement of a right.9 Proceduralisation in practical reasoning can be of a conceptual (derived component of substantive rights) or normative nature (procedural rights guaranteed in international human rights instruments). In any case it implies two aspects. The first is the control of applicability of relevant procedural mechanisms and the second relates to the examination of quality of their use in enforcing human rights. These two aspects denote a type of regularisation and thus limit the procedural autonomy of national jurisdictions complying with human rights norms.10 The origin of proceduralisation is frequently associated with various juridical constructions and judicial activism,11 or constraints in the formal rules of international adjudication which could lead to an unfair outcome when the substantive violation of a right could not be ascertained (beyond reasonable doubt),12 or in the dialectic of law where the substantive norms without their procedural protection could only be imperfect,13 or in the comparative 5 6

ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, para. 159. See further: A. Bottoms and J. Tankebe, “Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice”, 102(1) Journal of Criminal Law and Criminology (2012), pp. 119–170. 7 Brems, supra n. 2.1, pp. 138–139. 8 Aolain, supra n. 1.99, p. 22. 9 K.I. Panagoulias, La procéduralisation des droits substantiels garantis par la Convention européenne des droits de l’homme (Brussels, Bruylant 2011), p. 28. 10 Dubout, supra n. 2.4, p. 401. 11 Ibid., p. 399. 12 C. Buckley, “The European Convention on Human Rights and the Right to Life in Turkey”, 1(1) Human Rights Law Review (2001), p. 35. 13 Dubout, supra n. 2.4, p. 401.

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constitutional practice14 and practice of international human rights adjudicatory mechanisms,15 and the rule of law discourse.16 Overall, proceduralisation has, on the one hand, brought about a concretisation of rights; and, on the other hand, it has increased the complexity involved in securing them.17 In developing an argument on the resulting concretisation and complexity of rights through proceduralisation, Edouard Dubout submits that proceduralisation leads to the concretisation of rights by widening the scope of obligations and by deepening the requirement of their protection.18 An illustrative example of this trend in international law is the concretisation of the requirement of an effective investigation into the infringement of a substantive right. Dubout emphasises two aspects of this obligation. Firstly, it is not limited to the breaches of rights by state agents but is equally applicable at horizontal level. Secondly, international human rights law imposes standards of effectiveness which such an investigation must meet.19 Essentially, the obligation of an effective investigation, as a general requirement, creates further requirements such as, where applicable, the obligation of instituting criminal prosecution in the competent courts and thus penalising the acts breaching substantive rights. Dubout calls this specific widening of obligations.20 The deepening of protection of substantive rights through the procedural obligation occurs through: (1) prevention of a violation, (2) easier proving of the alleged breach of human rights, and (3) harsher sanctioning of human rights infringements.21 The first of these aspects (prevention of a violation) is essentially a mechanism of ex ante protection, which is not of interest for this study. The second aspect relates to the proving of an alleged breach of human rights. The procedural obligation imposes a duty on the state to collect evidence and to establish the relevant facts. Thus, the victim of a human rights infringement benefits 14

L. Lavrysen, “Protection by the Law: The Positive Obligation to Develop a Legal Framework to Adequately Protect echr Rights” in Y. Haeck and E. Brems (eds.), Human Rights and Civil Liberties in the 21st Century (Dordrecht, Springer 2014), pp. 113–114. 15 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, paras. 111–118. 16 T.R.S. Allan, “Procedural Fairness and the Duty to Respect”, 18 Oxford Journal of Legal Studies (1998), p. 497. 17 Dubout, supra n. 2.4, p. 403; A. Tay, “Human Rights and Human Wrongs”, 21(1) Adelaide law Review (1999), p. 12. 18 Dubout, supra n. 2.4, p. 404. 19 Ibid., pp. 405–406. 20 Ibid., pp. 405–406. 21 Ibid., p. 408.

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from the reality of such a violation being ascertained. When an investigation leading to the establishment of all relevant facts unjustifiably fails, a legitimate doubt arises with regard to the reality of the circumstances in which the infringement occurred and there is consequently a higher probability of finding the state’s responsibility for that infringement. Three scenarios are possible in this context: (1) when there is no investigation or it is ineffective, there is an automatic violation of the procedural obligation and also potentially of the substantive violation; (2) the investigation may be effective and may demonstrate, or suggest, that there is a violation of the substantive aspect of a right; and (3) an effective investigation shows that there is no responsibility of the state for the alleged breach of a substantive right (no violation in either aspect). This demonstrates that the procedural obligation benefits both the victim and the state. Lastly, the third aspect of the deepening of protection (harsher sanctioning) relates to the question which human rights and interests require criminal law protection. The answer to this question has to be observed through a process which notably moves into the direction of widening the scope of human rights protection through criminalisation. This also allows for the existence of mechanisms for the preventive procedural actions, ultimately benefiting the victim.22 Dubout sees the complexity of the procedural obligation from two perspectives. First, there is the problem of articulation of the alleged violation. The second problem concerns the identification of the relevant level of protection.23 In the context of the articulation of an alleged violation of rights, the question arises as to how to distinguish whether the procedural or the substantive aspect of the right is at issue in a particular situation. Dubout considers that the relevant criteria should be sought with regard to the moment of the existence of a human rights claim and the essence of such a claim. Thus, for instance, the procedural obligation is always an ex post action (whereas the substantive aspect is always an ex ante issue), and the procedural obligation is a requirement of means not of results (whereas the substantive aspect is a requirement of results). The second question looks at the relationship between two procedural obligations such as the procedural limb of a substantive right and the right to a remedy, as a separate procedural issue. The way this relationship is developing, in Dubout’s view, suggests that there is a tendency

22 23

Ibid., pp. 408–413. Ibid., p. 413.

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towards decentralisation of international human rights requirements at the national level.24 There is another aspect of complexity introduced by the proceduralisation of human rights related to the fact that the observance of human rights requirements enters the debate on procedural justice.25 The concept of justice is often analysed from the perspective of Aristotle’s teaching on distributive and corrective justice.26 Distributive justice is a principle embodied in a regime which underlines the distribution of goods and honours in a political community providing for a mathematical prospect of dividing equal shares between equals, and unequal shares between unequals. Corrective justice is a principle provided in courts for corrections or rectifications. In the context of criminal law, these corrections are punishments.27 In this context procedural justice is seen as an institutionalised application of the requirements of corrective and distributive justice in a particular case. It is essentially concerned with the adjudicative methods of application of legal norms and the legislative procedures of distribution of social goods and burdens. Human rights adjudication, through the mechanisms of criminal procedure, is essentially a form of corrective justice. A concept of procedural justice thus provides for the necessary conditions to assess the fairness of the adjudication of human rights norms through the mechanisms of criminal law.28 We shall return to the particular aspects of the assessment of fairness in the adjudication of human rights norms through the application of criminal-laws mechanism in further discussions in this study. For now, it suffices to observe 24 25 26

27 28

Ibid., pp. 414–424. See, for example, the approach in Panagoulias, supra n. 2.9, pp. 17–19. Note that the concept of procedural justice was also conceived in social psychology research. This led to the identification of four elements or criteria of procedural justice: participation (possibility to put forward the relevant arguments and to have them t­ aken into account), neutrality (independence, impartiality and accuracy of the decision making procedure), respect for the parties, and trust in the authorities. See further: E. Brems and L. Lavrysen, “Procedural Justice in Human Rights Adjudication: The European Court of Human Rights”, 35(1) Human Rights Quarterly (2013), p. 193; S.L. Blader and T.R. ­Tyler, “A Four-Component Model of Procedural Justice: Defining the Meaning of a ‘Fair’ ­Process”, 29(6) Personality and Social Psychology Bulletin (2003), pp. 747–757; T.R. Tyler, “Procedural Justice”, in A. Sarat (ed.), The Blackwell Companion to Law and Society (Malden, Blackwell Publishing 2004), pp. 435–452; N. Vidmar, “The Origins and Consequences of Procedural Fairness”, 15(4) Law and Social Inquiry (1990), pp. 877–892. D. Winthorp, “Aristotle and Theories of Justice”, 72(4) The American Political Science Review (1978), p. 1204. L.B. Solum, “Procedural Justice”, 2 University of San Diego Public Law and Legal Theory Research Paper Series (2004), p. 50.

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that in abstract the idea of procedural justice, as conceived by John Rawls,29 turns around three possible conceptions. The first is perfect procedural justice which operates under an independent criterion of fairness (separate from and prior to the procedure itself), and a devised procedure which is sure to produce the desired result. The second conception is imperfect procedural justice which contains an independent criterion of a fair outcome, but the procedure may be compromised by some other important aspects, such as the rules on admissibility of evidence in criminal proceedings, and thus the procedure allows for balancing between some “other ends of the law” against accuracy. The third conception is pure procedural justice which rejects the possibility of the existence of an independent criterion of the correct outcome. Under this assumption, whatever the outcome may be, it is correct or fair provided that the procedure has been properly followed.30 In his analysis of Rawls, Paul Ricoeur discusses a contractulist procedure which essentially means that the very procedure of deliberation has primacy over any commitment concerning an alleged common good. In other words, a purely procedural conception of justice is feasible out of any presuppositions concerning the good and can even free the just from the good.31 Through the social contract the principle of justice can be derived from a fair procedure without any commitment regarding the objective criteria of the just. Thus the whole idea behind the “justice as fairness” conception is to give a procedural solution to the question of the just.32 In legal theory, the possibility of procedural laws facilitating legal discourses without examining the argumentation as such, was presented by Jürgen Habermas in his discussion over normative content of the system of rights and of the idea of the rule of law. His discussion relates to court procedures as argumentation processes obeying their own logic. This is an area of intersection of legal procedure, on the one hand, and argumentative procedure, on the other. The former only defines, protects and structures the places in which argumentation is taking place. In these circumstances it is possible that the inner logic of the argumentation process remains intact, and moreover, without creating any restrain on the argumentation game. But a legal institutionalisation always subjects the different types of argumentation in legal procedures to specific temporal, social, and substantive constraints. Thus, pro29 30

J. Rawls, A Theory of Justice (Cambridge, Harvard University Press 1971). See further for a concise analysis of Rawls: Solum, supra n. 2.28, pp. 51–52; P. Ricoeur, The Just (Chicago, The University of Chicago Press 2000), pp. 36–39. 31 Ricoeur, supra n. 2.30, p. 37. 32 Ibid., p. 39.

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cedural norms limit the spectrum of admissible topics, questions, and arguments, and link argumentation to decision making. This creates a form of a procedural rationality and essentially an independent quasi-pure procedural justice.33 Criminal procedure, for instance, functions through the scope defined by the relevant code of criminal procedure which provides strict rules for the introduction of evidence in assessing the historical event of a criminal ­offence. The parties can deal with the law only within these bounds.34 As Mirjan R. Damaška explains, there is no perfect procedural justice.35 Moreover, John Morss argues that the criminal procedure provides for pure procedural justice as the procedural fairness is all there is. He considers that in the absence of any transcendental position from which to evaluate the outcome of a criminal trial, the outcome can be correct only to the extent to which the procedure is correct. Thus, the outcome of the criminal procedure could provide for no more than a “procedural truth” while other forms of truth should be searched elsewhere.36 In addition to the noted concretisation of rights and an increased complexity of their protection, in the practical reasoning of human rights law proceduralisation also implies conceptual frameworks through which the content and underlying rationale of the procedural obligation is conceived. In this connection, three approaches in human rights law giving rise to the procedural obligation of effective application of criminal-law mechanisms in human rights protection can be observed. The first approach advocates that in those areas in which the existence of the state’s positive obligations can be sufficiently ascertained, the procedural obligation could be shaped as an institutionalised mechanism of the actual implementation of such obligations.37 Thus the procedural obligation arises whenever the framework of positive obligations requires that a right be protected by criminal law. The purpose of such procedural obligation would be to implement the substantive criminal law protection construed through the concept of positive obligations. 33 34 35 36 37

J. Habermas, Between Facts and Norms (Cambridge, Massachusetts Institute of Technology Press 1996), pp. 178–179. Ibid., pp. 234–237. M.R. Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, Yale University Press 1986), p. 150. J.R. Morss, “Crime Stories: Posnerian, Pragmatism, Rawlsian Pure Procedural Justice, and the Fiction Problem”, 9(2) Deakin Law Review (2004), p. 645. D. Xenos, The Positive Obligations of the State under the European Convention of Human Rights (London, Routledge 2012), p. 173.

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The second approach sees the procedural obligation as a conception flowing from the right to an effective remedy for human rights offences.38 This is an ex post human rights protection through the mechanisms of criminal law which follows from the necessity of reparation of the infringed right. The effective application of criminal-law mechanisms in this context is only one relevant element in the overall assessment of protection. It exists irrespective of any other (positive) obligations and its purpose is not to reinforce a right but to remedy the existing situation. Lastly, the third approach argues that the procedural obligation is an implied instance or inherent component of rights guaranteed under international human rights law.39 Accordingly, the requirement of application of criminal-law mechanisms, as ultima ratio protection, could be deduced from every substantive right which, in the given circumstances, may be the subject of a criminal infringement. In order to understand the content and underlying rationale of the procedural obligation, a deeper structural analysis of the observed approaches in human rights law is in order. 2

Procedural Obligation within the Structure of Positive Obligations

2.1 Introduction The concept of positive obligations has developed from the contemporary demands of rethinking the scope and structure of human rights law under which human rights imply an entitlement to their effective enjoyment and not merely their non-violation by state agents. The states have therefore “inherent positive obligations to protect and guarantee” human rights.40 The meaning of protection in this sense essentially relates to specific legal obligations that must be taken to the benefit of a right-holder, as an assurance of the effective enjoyment of his or her rights. In general terms this means that there is as a requirement on the state to take certain actions to secure human rights.41 Hence, the 38

A.R. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing 2004), p. 237. 39 Dubout, supra n. 2.4, p. 400; P. Mahoney, “A Duty to Investigate under the European Convention on Human Rights”, in Liber Amicorum Héctor Fix-Zamudio (San José, Secretaria de la Corte interamericano de derechos humanos 1998), pp. 1012 and 1021. 40 Xenos, supra n. 2.37, p. 2. 41 D.J. Harris, M. O’Boyle, C. Warbrick, E. Bates and C. Buckley, Law of the European Convention on Human Rights (Oxford, Oxford University Press 2009), p. 18.

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positive obligations are treaty-based exactions to recognise and secure human rights to all individuals under the jurisdiction of the state.42 The concept of positive obligations initially developed as a doctrinal construction of human rights law related to the question of the applicability of international human rights law to the relations between private parties.43 It was within such a debate that the assessment of the relations between the human rights requirements and mechanisms of criminal law played an essential role in understanding the emerging concept, and criminal law presented one of the first normative structures for its application.44 The debate over the applicability of international human rights law to the relationship between private parties has generated several doctrinal concepts relevant to the perception of positive obligations. This discussion initially heavily relied on the doctrine of Drittwirkung der Grundrechte (third-party effect of fundamental rights) which developed in the German legal order as a method of explaining the applicability of constitutional fundamental rights guarantees in relations between private parties.45 Indeed, in arguing the case of X and Y v. the Netherlands, as one of the first classic positive obligations cases before the ECtHR, involving the issue of criminal law protection of a mentally handicapped child from the sexual abuse of a private party, the participants engaged in a discussion over the responding state’s obligation through the doctrine of Drittwirkung.46 In most general terms the concept of Drittwirkung could be distinguished as direct and indirect third-part effect. Under the former aspect, the fundamental rights have a direct applicability to the relations between private parties whenever the lower norms are inadequate for the solution of a problem, 42 43

44 45 46

P. Leach, “Positive Obligations from Strasbourg – Where do the boundaries lie?”, 15(3) Interights Bulletin (2006), p. 123. See further: J. de Meyer, “The Right to Respect for Private and Family Life, Home and Communications in Relations between Private Individuals, and the Resulting Obligations for State Parties to the Convention”, in A.H. Robertson (ed.), Privacy and Human Rights (Manchester, Manchester University Press 1973), p. 255. This debate, however, is no longer of the same relevance for the contemporary international human rights law (see Xenos, supra n. 2.37, pp. 34–39; R. Singh, The Future of Human Rights in the United Kingdom: Essays on Law and Practice (Oxford, Hart Publishing 1997), p. 54). See further: ECtHR (Judgment) X and Y v. the Netherlands, no. 8978/80, 26 March 1985. J. Fedtke, “Drittwirkung in Germany”, in D. Oliver and J. Fedtke (eds.), Human Rights in Private Sphere (London, Routledge 2007), p. 126. A. Clapham, “The ‘Drittwirkung’ of the Convention”, in R.St.J. Macdonald, F. Matscher and H. Petzold (eds.), The European System for the Protection of Human Rights (Dordrecht, Martinus Nijhoff 1993), p. 163.

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while the thesis of indirect Drittwirkung envisages only the possibility for the fundamental norms to complete the general clauses of the lower law.47 In German legal theory, from which the concept originates, the latter aspect (mittelbare Drittwirkung) prevails.48 It sets two requirements before the domestic courts. First, the law must be interpreted in the light of human rights considerations, and, secondly, the courts have a constitutional duty to apply such modified law. This is a radiation effect of human rights in the private sphere.49 In addition to Drittwirking, contemporary legal theory has developed some other concepts explaining the applicability of fundamental human rights law to relations between private parties. One of these theories, based on the objective dimension of basic rights, is the concept of the duty to protect which, as already observed above, relates to the requirement of positive action. Under this theory, the states must take all necessary measures, primarily through an adequate legislative intervention, to give full effect to fundamental rights and to defend them from restrictions and infringements by other private parties.50 The third party-effect of fundamental law will not have the same features at the national and international level.51 At the national level, what might be relevant is the wording of the relevant domestic law, the manner of its enforcement and the legal field of its applicability. In this connection it should be noted that, in principle, criminal cases, which involve some exercise of public authority, are in a closer proximity to the constitutional issues of fundamental law then the cases emanating from some other fields of law.52 This proximity mandates a higher degree of circumspection of the state’s international responsibility in the event of failures in the application of criminal-law mechanisms in the protection of an individual from other private persons. However, as some authors point out, the third-party effect in this context is only indirect since the application of international law could only lead to changes in law or practice and not to a real restitution of the victim’s rights. Moreover, the wrongdoer is neither affected nor punished through the norms 47

D. Spielmann, L’effet potentiel de la Convention européenne des droits de l’homme entre personnes privées (Brussels, Bruylant 1995), p. 86. 48 R. Brinktrine, “The Horizontal Effect of Human Rights in German Constitutional Law: The British debate on horizontality and the possible role of ‘mittelbare Drittwirkung der Grundrecht’”, 6 European Human Rights Law review (2001), p. 423. 49 Fedtke, supra n. 2.45, pp. 142–143. 50 Brinktrine, supra n. 2.48, p. 426. 51 Clapham, supra n. 2.46, p. 165. 52 Fedtke, supra n. 2.45, p. 134.

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of fundamental law which supports the idea of its indirect effect to the relations between private parties.53 There are several studies providing an argumentative criticism of the applicability of the Drittwirkung theory at the level of international human rights protection. Dimitris Xenos, for example, primarily sees the problem of subsidiarity when a domestic legal construction is automatically implemented at the international level. Nevertheless, he concludes that by opening the possibility of a constitutional claim through legislature, the legal system motivates the state machinery to realise and act in accordance with basic human rights which makes the influence of Drittwirkung for the development of positive obligations undeniable.54 A doubt as to the relevancy of the Drittwirkung discussion is provided by Andrew Clapham who, in the context of the echr applicability to relations between private parties, considers that the relevant question is no longer: whether the echr rights apply in the private sphere; but rather which rights apply, and to what extent.55 He makes an interesting argument that, in practice, the distinction between the private and public sphere, even if it could be made, could lead to a lacuna in the protection of human rights and could thus be dangerous.56 Clapham therefore proposes two approaches through which the applicability of international human rights law guarantees between private parties could be conceived. The first approach relies on his interpretation of rights and duties in international public law finding that individuals have rights and duties and must be considered to some extent subjects of international law.57 The second approach examines the theory under which states and private individuals should be judged by the same standards and the same judges which, together with the developments in contemporary human rights law and societal developments, justifies the applicability of international human rights law between private parties.58 In the context of the above discussion there are two concluding points to be made concerning the positive procedural protection through the application 53

E.A. Alkema, “The third-part applicability of ‘Drittwirkung’ of the European Convention on Human Rights”, in F. Matscher and H. Petzold (eds.), Protecting Human Rights: The European Dimension (Köln, Carl Heymanns Verlag 1988), p. 38. 54 Xenos, supra n. 2.37, p. 47. 55 A. Clapham, Human Rights in the Private Sphere (Oxford, Oxford University Press 1996), p. 90. 56 Ibid., p. 94. 57 Ibid., pp. 94–124. 58 Ibid., p. 124.

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of criminal-law mechanism. Firstly, there is an undisputed proximity of criminal law and the exercise of the state’s organised criminal law authority because if it were not that way we would be in the sphere of anarchy and tyranny,59 which we are not. Secondly, as already noted above, criminal law is at the same time in closer proximity to the constitutional issues of fundamental law than are the cases emanating from some other fields of (private) law. It therefore follows that criminal law is positioned between the human rights expectations of an individual and the exercise of public authority. The avoidance of Clapham’s gap is a very weighty consideration but, an analysis in which the procedural obligation can be reduced as a particular demand from higher substantive rights, will show that there is no place for such fears when it comes to human rights protection through the mechanisms of criminal law. Procedural Obligation as a Democratic Limit in the Application of Criminal-law Mechanisms Positive obligations in general are guarantee distinct from negative obligations which require the state to abstain from unjustified interference with the rights of an individual. Positive obligations can therefore be denoted as a requirement on the state to take action or to do something,60 while negative obligations are duties of abstention.61 In the general structure of rights and duties, the negative obligations could be designated as the obligation to respect, while the positive obligations could be denoted as the obligations to protect and fulfil.62 The latter could be further broken down into the requirement on the state to protect human rights against infringements from private parties (obligation to protect), and the obligation of the state to “facilitate the individual’s enjoyment of a human right” when that appears necessary (obligation to fulfil).63 The positive and negative obligations do not usually lend themselves to a precise distinction,64 but the state must, in any case, strike a fair balance between the competing interests of an individual and the community as a whole in 2.2

59

See further for the historical transition of criminal law: Gaston, Levasseur and Bouloc, supra n. 1.2, p. 16. 60 Mowbray, supra n. 2.38, p. 2. 61 S. Borelli, “Positive Obligations of States and the Protection of Human Rights”, 15(3) Interights Bulletin (2006), p. 101. 62 D. Shelton and A. Gould, “Positive and Negative Obligations”, in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford, Oxford University Press 2013), p. 566. 63 Lavrysen, supra n. 2.14, pp. 72–73. 64 Ibid., pp. 73–76.

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order to comply with its human rights obligations.65 This can be denoted as a conceptual connectedness of positive and negative obligations,66 which is of the relevance for this study to the extent that it raises the question of appropriateness of the fair balance test in cases in which there is no issue of interference, and where the claim of an individual is aimed at something different, namely the positive action of effective application of criminal-law mechanisms. Xenos noted from a case-law analysis that the positive and negative duties are often merged through the fair balance test of proportionality between the interests of an individual, on the one hand, and the community as a whole, on the other.67 He considers, however, that where an issue of interference (negative duty) does not arise, there is no issue of a legitimate aim or a specified ­community interest opposing the interests of an individual. Consequently, the fair balance requirement operates only in abstracto.68 It ­follows that when there is no previous interference with the substantive rights of an individual, the requirement for an appropriate action does not depend on the question of proportionality in the application of such an action but on the democratic limit on the scope of human rights law applicable in the context. Accordingly, the ­relevant question is: what is the legitimate scope for ­intervention of international human rights law mechanisms to impose positive obligation on the state? The answer to this question, according to Xenos, surpasses the individual circumstances and concerns “by virtue of equality, the overall management of analogous claims” of others.69 Although this theory cannot be indistinctively applied in the context of the protection through the application of criminal-law mechanisms since there is a possibility of conflicting various legitimate aims with the obligation to criminal prosecution, it nevertheless emphasises the necessity to identify a democratic limit to the scope of protection implicit in the affirmative action of criminal prosecution. This democratic limit could serve as a deontological denominator to any structure of an effective application of criminal-law mechanisms, conceived as a separate and autonomous duty in human rights law. Accordingly, in this sense, this study is in a search to identify a democratic 65 66

ECtHR (Judgment) A, B, C v. Ireland [gc], no. 25579/05, 16 December 2010, para. 247. See further: Xenos, supra n. 2.37, pp. 205–206; Borelli, supra n. 2.61, p. 101; T.J. Melish and A. Aliverti, “Positive Obligations in the Inter-American Human Rights System”, 15(3) Interights Bulletin (2006), p. 122. 67 Xenos, supra n. 2.37, p. 205. 68 Ibid., p. 147. 69 Loc. cit.

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limit determining the effectiveness of application of criminal-law mechanisms in human rights protection. Reducing the Procedural Obligation from the General Scope of Positive Obligations In her normative categorisation of positive obligations, Cordula Dröge attempts to structure positive obligations from the perspective of two situations of human rights violations: first, those in which there is a violation of human rights as a result of the behaviour of a third party, and second, where a violation of a right does not follow from an immediate action by the state or a private party. In these circumstances she distinguishes between horizontal and social dimension of positive obligations. The former concerns the dimension of human rights protection between private parties as an obligation on the state to protect one individual against interference by another private party. All other human rights violations resulting from the clear failure of the state to act fall under the second, social, dimension of positive obligations. In essence these are obligations on the state to realise effective enjoyment of human rights in a given social reality, primarily thorough the adequate legislative action.70 Another distinctive feature of positive obligations proposed by Dröge is of even greater importance for this study. She submits that the positive obligations can be distinguished as substantive and procedural. The latter, h ­ owever, are not a separate, third, group of positive obligations but a guarantee positioned transversally to horizontal and social positive obligations. They ­essentially form an aspect of the horizontal and social positive obligations. The procedural obligations, according to Dröge, serve to ensure better protection from state interference and effective enjoyment and enforcement of positive obligations. As such, the procedural obligation exists in the same way for positive and negative obligations.71 Moreover, the procedural ­obligation has an ­auxiliary ­function and can come into play only when a negative or p ­ ositive claim exists. By its nature, the procedural obligation is a “minimal positive guarantee” which the state has to respect, irrespective of any substantive consideration.72 The distinctiveness of substantive and procedural guarantees in the structure of positive obligations was also contemplated by Dinah Shelton and Ariel Gould. For them the former aspect concerns the question of the appropriate steps that should be taken to safeguard rights whereas the latter is a question 2.3

70 71 72

C. Dröge, PositiveVerpflichtungen der Staaten in der Europaischen Menschenrechtskonvention (Heildeberg, Springer 2003), pp. 381–382. Ibid., pp. 382–383. Loc. cit.

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of adequate response to the breach of a right.73 Xenos similarly considers that in the multileveled structure of positive obligations, the substantive guarantee encompasses the issue of active protection of human rights, while the procedural guarantee implements such protection.74 Within this structure devised by Xenos, the substantive content of positive obligations, as a system of active protection, aims at the prevention of human rights violations.75 At the same time there are two levels of enforcement of the substantive obligations: first, the ex post imposition of deterring sanctions, and second, the possibility to challenge ex ante the non-compliance with the relevant standards.76 The former aspect, which is of the interest for the present study, is essentially a requirement of the application of effective procedural means in the imposition of deterring sanctions on the private parties that have caused the breach of a human right. The human rights standards governing the relations between private parties are thereby implemented through a sanction which is at the same time also a remedy. The same logic should follow in relation to the individual responsibility of public officials in charge of the positive duty of protection of human rights.77 It follows from the structure proposed by Xenos that he extends Dröge’s concept of relevancy of the procedural obligation to the issue of a remedy, and not only the enforcement of the substantive positive obligations. For Xenos, the procedural obligation leading to the imposition of a deterring sanction through the application of procedural mechanisms is ultimately a matter of the application of a remedy for the violation of a substantive right. In any case, however, the ex post framework, as an “absolute minimum level of enforcement,” must be guaranteed whenever the substantive aspect of positive obligations is reasonably certain.78 Another author concurring with Xenos is Laurens Lavrysen who, developing the concept of protection by law in the context of positive obligations, considers that this concept requires that “legislation is developed in such a way that violations of obligations to respect, protect and fulfil are prevented and remedied.”79 For him, the substantive aspect of the protection by law mandates for a substantive safeguards to fulfil human rights and to prevent 73 Shelton and Gould, supra n. 2.62, p. 571. 74 Xenos, supra n. 2.37, p. 207. 75 Loc. cit. 76 Ibid., p. 211. 77 Ibid., p. 212. 78 Loc. cit. 79 Lavrysen, supra n. 2.14, p. 85.

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their violations.80 Distinct from this aspect is the procedural protection by law which relates to the instrumental and intrinsic functions of fairness. In practice, as Lavrysen submits, procedures contribute to the effective protection of substantive human rights.81 In the specific context of criminal-law protection, as it was already observed above, the concept of positive obligations could be conceived as a duty imposed on the state to criminalise, criminally investigate and prosecute, subject to a criminal trial and, where appropriate, punish human rights offences.82 The human rights protection through criminal law is a most intrusive and powerful instrument in the hands of the state for providing security to the individuals within its jurisdiction. As such, it is a guarantee of security both in the relations between individual state officials and private persons on the one hand, and between two or more private persons, on the other.83 The distinctiveness of positive obligations is that they empower the affected individuals by reinforcing their capacity to force the state authorities to protect their human rights.84 The extent to which the positive obligations empower individuals to seek protection of their rights through the application of criminal-law mechanisms depends on the scope of protection allocated to a particular right in human rights law. In other words, when assessing the rationale of human rights protection through the application of criminal-law mechanisms the first question to be answered is whether the relevant human rights standards require that a right be protected by criminal law. In other words, the question is whether the substantive protection of the right at issue implies penalisation of its ­infringements. If this question is answered positively, then there are further requirements of employing the relevant criminal law mechanisms of putting the ­substantive protection into action (procedural obligation). At the European level, where the positive obligations as a concept have developed various subtle aspects of protection,85 the requirement of protection through criminal law exists with regard to the vast majority of rights guaranteed under the echr.86 The intention of the present discussion is not to discuss them exhaustively but rather to conceptualise a model of reduction of the concept of positive obligations to the level of their procedural form. 80 Ibid., p. 89. 81 Ibid., p. 108. 82 Van Kempen, supra n. 1.54, p. 16. 83 Loc. cit. 84 Ibid., p. 17. 85 Loc. cit. 86 Lavrysen, supra n. 2.14, pp. 111–112.

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Substantive protection through penalisation or criminalisation in general implies the existence of criminal law protection through effective deterrence of infringements of individual rights. The ECtHR explained this for the first time in the case of X and Y v. the Netherlands, concerning the sexual abuse of a mentally handicapped child, in the following terms: The Court finds that the protection afforded by the civil law in the case of wrongdoing of the kind inflicted on Miss Y is insufficient. This is a case where fundamental values and essential aspects of private life are at stake. Effective deterrence is indispensable in this area and it can be achieved only by criminal-law provisions; indeed, it is by such provisions that the matter is normally regulated.87 The request for a substantive protection of human rights from criminal acts surpasses the mere penalisation of a conduct. The positive obligations also include all measures aimed at providing a legal framework for the recognition and protection of a right through prevention and suppression of the conduct potentially endangering it. This essentially substantive protection88 was framed by the ECtHR for the first time in Osman v. the United Kingdom where it assessed the state’s reaction to a potential danger to the right to life of the applicants’ relative.89 In Siliadin v. France, as one of its landmark cases concerning the positive obligations under the echr,90 the ECtHR dealt with the problem of lack of adequate penalisation and effective prosecution of servitude and forced labour under Article 4 echr. The requirement of penalisation and effective prosecution was found to constitute positive obligations under the said provision. This was expressed in the following terms: [I]t necessarily follows from this provision that States have positive obligations, in the same way as under Article 3 for example, to adopt criminallaw provisions which penalise the practices referred to in Article 4 and to apply them in practice…91 87 88 89 90 91

ECtHR (Judgment) X and Y v. the Netherlands, no. 8978/80, 26 March 1985, para. 27. ECtHR (Judgment) Branko Tomašić and Others v. Croatia, no. 46598/06, 15 January 2009, paras. 60–61. ECtHR (Judgment) Osman v. the United Kingdom, no. 23452/94, 28 October 1998, para. 115. H. Cullen, “Siliadin v France: Positive obligations under Article 4 of the European Convention on Human Rights”, 6(3) Human Rights Law Review (2006), p. 586. ECtHR (Judgment) Siliadin v. France, no. 73316/01, 26 July 2005, para. 89.

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It follows that the requirement of positive obligations extends not only to prescribing the provisions penalising the practices under Article 4 echr, which can be determined as an adequate criminal law mechanism, but also to the obligation to apply them in practice. This is essentially a requirement of effective investigation and prosecution, which follows from the case-law in M.C. v. Bulgaria which the ECtHR referred to in the above-cited paragraph of the Siliadin case. In M.S. v. Bulgaria the ECtHR held: [T]he Court considers that States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution.92 In further development of the case-law concerning the positive obligations under Article 4 echr, the ECtHR specified the content of the obligation, conceiving also its subtle requirements. In Rantsev v. Cyprus and Russia, concerning human trafficking, the ECtHR noted: Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking…. For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests…93 The above analysis shows that the requirement of “application of criminal law provisions in practice” within the meaning of Siliadin; the “effective investigation and prosecution” as required in M.C.; and the detailed account of the procedural obligation as reiterated in Rantsev denotes essentially the same conception with the common descendent: the procedural obligation in human rights law.

92 93

ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, para. 153. ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 288.

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Similarly, the IACtHR has also implied a preventive and repressive aspect of protection within the concept of positive obligations.94 Positive obligations are conceived as a general duty of the state to prevent infringements of human rights by state agents and non-state actors, and to investigate and punish any such infringement.95 In the theory of the IACtHR case-law this is determined as the duty on the state to ensure free and full exercise of rights under the achr. This duty in general implies an organisational protection of rights, investigation and punishment, as mechanisms of restoring the violated rights, and the provision of appropriate compensation.96 The concept of positive obligations as conceived by the ECtHR and the ­IACtHR finds support at the global level in the hrc’s assessment of the general obligations of the states parties to the iccpr, encompassing a duty to “prevent, punish, investigate or redress the harm caused by [the] acts by private persons or entities.”97 Moreover, it appears that the general concept of positive obligations implying the duty to ensure human rights through prevention and investigation of human rights offences was accepted by other regional mechanisms of observance of human rights. Thus, the AComHPR noted that the governments have “a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations” into human rights offences.98 It follows from the above that, notwithstanding the regional, social and political differences in the requisite scope and strength of human rights protection through the mechanism of criminal law, there is a strong resemblance in the conceptualisation of procedural obligation suggesting a trend towards its universal acceptance as a firm doctrinal conception that can be deduced from the overall framework of positive obligations. More specifically, this procedural obligation functions in the overall context of positive obligations as an imposed “coercive duty” on the state to prosecute harmful acts.99 In other

94

95 96 97 98 99

IACtHR (Judgment) Sanchez v. Honduras, 26 November 2003, para. 110. See further: L. Lavrysen, “Positive Obligations in the Jurisprudence of the Inter-American Court of Human Rights”, Inter-American and European human rights journal (2014), pp. 94–114. D. Shelton, “Private Violence, Public Wrongs, and the Responsibility of States”, 13(1) Fordham International Law Journal (1989), p. 2. Ibid., p. 13; I.D. Butler, “Recent Advisory Opinions and Contentious Cases of the InterAmerican Court of Human Rights”, 4(1) Human Rights Law Review (2004), p. 144. ccpr, supra n. 1.82, para. 8. AComHPR (Communication) Commission Nationale des Droits de l’Homme et des Libertés v. Chad, no. 74/92, 11 October 1995, paras. 20 and 22. L. Lazarus, “Positive Obligations and Criminal Justice: Duties to Protect or Coerce?”, in L. Zedner and J.V. Roberts (eds.), Principles and Values in Criminal Law and Criminal

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words, it is a requirement of effective application of criminal law-mechanisms in human rights protection. 3

Procedural Obligation and the Right to an Effective Remedy in Human Rights Law

3.1 The Right to a Remedy in Human Rights Law The right to a remedy in human rights law generally implies the procedures and institutions for enforcing a right and the actions and measures for prevention of, redress or compensation for a violated right. The logic of the right to a remedy in international law follows from the principle ubis jus, ibi remedium (where there is a right there is a remedy).100 The right to a remedy is essentially a notion of corrective or remedial justice. Its main purpose is to rectify the wrong done and to correct injustice.101 Shelton explains that there are three central functions of remedies. First is condemnation or retribution, which aims at holding a wrongdoer responsible and thus satisfying a moral need. Through remedies and sanctions the fundamental values of the society are affirmed and reinforced. Moreover, this could also serve as a potent restraint on any repetition of the infringements.102 Secondly, the remedies provide for deterrence which can be general and specific. The former is an expectation that a rational potential wrongdoer will engage in a cost-benefit analysis of the potential act and the expected benefit. On the other hand, the specific deterrence is focused on the wrongfulness of particular activities, through prohibition (ex ante) and punishment (ex post).103 The third function of remedies relates to restorative justice and reconciliation. Restorative justice has a procedural and substantive aspect. The procedural r­ elates to the obligation to bring the wrongdoer to justice, while the substantive relates to reconciliation, forgiveness and other mechanisms of ­reintegration rather than punishment of the offender.104

100

101 102 103 104

Justice: Essays in Honour of Andrew Ashworth (Oxford, Oxford University Press 2012), p. 136. D. Shelton, “Human Rights, Remedies”, The Max Planck Encyclopedia of Public International Law – online edition 2008, available at www.mpepil.com, (last visited 1 July 2016), p. 1. D. Shelton, Remedies in International Human Rights Law (Oxford, Oxford University Press 2005), p. 10. Ibid, p. 12. Ibid, p. 13. Ibid, p. 15.

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The right to a remedy is provided in a number of international human rights instruments and is generally accepted as a reflected concern of upholding and ensuring effective enjoyment of guaranteed rights.105 It is widely accepted in the doctrine that the origins of the right to a remedy in international law follow from the concept of the amparo procedure of Latin American states.106 Amparo is essentially a judicial procedure of the control of constitutionality and legality. In its contemporary form, it is a procedure by which fundamental rights of citizens are protected against the authorities.107 This procedure has informed the first structure of the right to a remedy in international human rights instruments which was conceived under Article 18 of the American Declaration of the Rights and Duties of Man by providing that “[e]very person may resort to the courts to ensure respect for his legal rights” and that there “should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.”108 This provision was later reflected109 in Article 8 of the Universal Declaration of Human Rights which guarantees that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” A more complex structure of the guarantee of an effective remedy is provided under Article 2 (3) iccpr. It consists of the obligation on the states to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity”(Article 2(3)a); as well as the obligation to “ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy”

105 Shelton, supra n. 2.100, p. 1. 106 J. Raymond, “A Contribution to the Interpretation of Article 13 of the European Convention on Human Rights”, 5(3) The Human Rights Review (1980), p. 161; P. Mertens, “Origines et fondements du droit de recours interne en cas de violation d’une norme de droit international”, in A. Bleckmann, Ph. Delannay, H. Golsong, R. Kovar, J.-V. Louis, P. Mertens and J. Velu, Les recours des individus devant les instances nationales en cas de violation du droit européen (Brussels, F. Larcier 1978), p. 35. 107 Mertens, supra n. 2.106, p. 30. 108 American Declaration of the Rights and Duties of Man, OEA/Ser.L./V.II.23, doc. 21, rev. 6 (1948). 109 Raymond, supra n. 2.106, p. 161.

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(Article 2(3)b); and to “ensure that the competent authorities shall enforce such remedies when granted” (Article 2(3)c). On the other hand, the achpr does not expressly provide for the right to a remedy. However, it is considered that such a requirement follows from at least three provisions of the achpr. The first is contained in the general obligation under Article 1 achpr; the second is embodied in the provision of Article 7 guaranteeing the right of an individual to have his or her case heard by a competent authority which will examine the recourse against acts violating fundamental rights recognised under the relevant conventions, laws, regulations and customs; and the third is provided under Article 26, which requires the states to secure and empower the courts and institutions for the promotion and protection of rights under the achpr.110 Article 13 echr provides that “[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Similarly, achr, in Article 25(1) provides that “[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties”. Under paragraph 2 of the same Article the states parties are required: (1) to ensure that any person claiming such remedy has his or her rights determined by the competent authority; (2) to develop the possibilities of a judicial remedy; and (3) to ensure the enforcement of remedies by the competent authorities. In the classical tripartite arrangement of human rights obligations to respect, protect and fulfil, the latter could be understood to encompass the obligation to provide remedies allowing for a possibility of challenging human rights infringements committed by the state or private parties. This essentially implies a positive action and, owing to the position advocated in the theory that all rights are meaningless without the existence of a remedy, it assists in arguing the case that all obligations are necessarily positive.111 This could also explain why some authors have considered the remedial action within the general structure of positive obligations. Xenos thus argues that

110 G.M. Musila, “The Right to an effective remedy under the African Charter on Human and Peoples’ Rights”, 6 African Human Rights Law Journal (2006), pp. 447–448. 111 Lavrysen, supra n. 2.14, p. 75.

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the remedial action is a minimum requirement for enforcing the substance of positive obligations. The right to a remedy essentially functions as an ex post model of enforcement which corresponds to a sanction for the infringements and violations of human rights.112 There is no reason to disagree with these assertions. However, these arguments cannot be confined only to the structure of positive obligations. The requirement for a remedy exists irrespective of whether any previous issue of the state’s positive obligations arose. It can be conceived as a separate procedural requirement without deducing it from the general structure of positive obligations. The right to a remedy in human rights law is essentially a procedural matter. Several authors have questioned the substantive value of the provisions guaranteeing the right to a remedy in international human rights law and considered such provisions as principally providing for a model of sanctioning and protection of substantive human rights. Under this approach, the provision providing for the right to a remedy adds to the constructive and formal aspect of international human rights treaties rather than to their normative and substantive content.113 It follows that the right to a remedy could be considered merely as a move to secure substantive rights.114 Shelton, however, contemplates a dual meaning of remedies. The first is the procedural one, which denotes a process in which arguable human rights claims are examined and decided; the second is the substantive one, which is the question of the outcome of the proceedings or the relief afforded to a successful claimant.115 These considerations raise the issue of the relationship between the right to a remedy and the related substantive and procedural guarantees in international human rights law. In other words, there is a general question of the substantive autonomy of the provisions guaranteeing the right to a remedy and their procedural content. From the perspective of the substantive autonomy of the right to a remedy, two different aspects have been distinguished, for example, in the ECtHR case-law. First, it is not possible to invoke only the right to a remedy without relating it to a substantive human rights norm and in this sense that right is not an autonomous substantive right.116 On the other 112 Xenos, supra n. 2.37, p. 191. 113 P. Mertens, “Le droit à un recours effectif devant l’autorité nationale compétente dans les conventions internationales relatives à la protection des droits de l’homme”, 8 La protection internationale des droits de l’homme (1977), p. 73. 114 Raymond, supra n. 2.106, p. 162. 115 Shelton, supra n. 2.101, p. 7. 116 Mertens, supra n. 2.113, p. 75.

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hand, the right to an effective remedy can be invoked irrespective of a violation of one of the substantive norms, which gives it an autonomous substantive meaning.117 The procedural content of the right to a remedy in general could be considered under the requirement of effectiveness. It could be understood to encompass various detailed aspects of the procedure such as independency and impartiality of the authorities, adversarial procedure and a requirement for a reasoned judgment. On the other hand, the procedural content of the right to a remedy could be understood as a more global issue where only a denial, in some particular circumstances, of the procedural guarantees, or some grave irregularities in the procedure could raise an issue as to the effectiveness of a remedy.118 A general proposal for the procedural content of the right to a remedy was conceived as including these requirements: (1) accessibility of a remedy to an individual allowing him or her to start a proceeding before the competent authority and obtain a decision from that authority; (2) the remedy must be sufficient, which means that the competent authority must have the power to redress the violation found; (3) there must be sufficient likelihood that the remedy will be accepted (availability); and (4) the remedy must not be a repetition of a remedy already used.119 Another issue related to the general concept of the right to a remedy is the question of its applicability between private parties. Although the wording of the right to a remedy under Article 13 echr, in the part which explains its applicability,120 initially gave rise to a discussion about the applicability of this provision to the infringements of human rights by private parties,121 the legal theory dismissed such doubts holding that the guarantee of the right to a remedy is equally applicable to the infringements of rights by private parties or

117 Raymond, supra n. 2.106, pp. 162–164. See further: ECtHR (Judgment) M.A. v. Cyprus, no. 41872/10, 23 July 2013, paras. 116–117. 118 J. Velu, “Les voies de droit ouvertes aux individus devant les instances nationales en cas de violation de la Convention européenne des droits de l’homme”, in A. Bleckmann, Ph. Delannay, H. Golsong, R. Kovar, J.-V. Louis, P. Mertens and J. Velu, Les recours des individus devant les instances nationales en cas de violation du droit européen (Brussels, F. Larcier 1978), pp. 204–205. 119 Raymond, supra n. 2.106, p. 168. 120 The text reads: “notwithstanding that the violation has been committed by persons acting in an official capacity.” The same formulation can be found in Article 2 (3) iccpr and 25(1) achr. 121 Mertens, supra n. 2.113, p. 84.

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state officials.122 Since there is no reasonable argument for holding otherwise, this study will concur with that approach. Application of Criminal-law Mechanisms as a Remedy for Breaches of Human Rights In principle, the object and purpose of a remedy varies depending on the importance attached to a particular interest and the idea about the best means to protect it. Remedies in the criminal law sphere function only as modalities of the general requirement for an effective remedy.123 Within the tripartite function of remedies (retribution, deterrence and restoration), criminal-law remedies play an essential role whenever they relate to a substantive interest protected through criminal law. Criminal-law remedies in the context of human rights protection have a deontological meaning of adequate procedure which must be put in motion after the occurrence of a human rights offence. Thus, the criminal law remedies must be capable of leading to the identification and punishment of those responsible124 or for bringing to justice the offender.125 The application of criminal-law mechanisms is a process or a continuum which, once set in motion, ordinarily includes the following phases: investigation (by the police or other state authority); prosecution before the competent court; sentencing and, if applicable, imprisonment; and possibly reintegration of the person in the society.126 As such, the institution of criminal proceedings and their effective course cannot be detached from their desired final outcome – the imposition of a criminal sentence or punishment of those who have been proven to be guilty.127 This is reflected in the fact that punishment is the element commonly denominating a judicial process as criminal (penal).128 Accordingly, if we accept the general tripartite theoretical distinction of

3.2

122 Raymond, supra n. 2.106, p. 170; Clapham, supra n. 2.55, pp. 195–196. 123 Mertens, supra n. 2.113, p. 217; Velu, supra n. 2.118, p. 207. 124 ECtHR (Judgment) Kaya v. Turkey, no. 22729/93, 19 February 1998, para. 107 (emphasis added); ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 257. 125 ccpr, supra n. 1.82, para. 16. 126 F.W. Miller, R.O. Dawson, G.E. Dix and R.I. Parnas (eds.), Prosecution and Adjudication (New York, The Foundation Press 1986), p. 1. 127 See further: High Court of Justice of England and Wales, [2015] ewhc 715 (Admin), 17 March 2015, para. 161. 128 G.P. Fletcher, Rethinking Criminal Law (Oxford, Oxford University Press 2000), p. 409; See further: ECtHR (Judgment) Sergey Zolotukhin v. Russia [gc], no. 14939/03, 10 February 2009, paras. 52–57.

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remedies in human rights law as retributive,129 deterrent130 and restorative,131 and there is no reason not to do so, a question that emerges is this: could the mere institution and effective conduct of criminal proceedings, irrespective of their outcome, be considered as an effective remedy? Perhaps the positive answer to the above question comes close to the effect of retribution and deterrence of remedies but that opens an area for a very dangerous discussion. Some have considered that for securing the effective human rights remedy it is not necessary that every offender be punished since only the threat of punishment can create necessary deterrence. Moreover, under this approach, an indictment, even without any trial, could also bring about effective deterrence since it would implicate an arrest of the individual concerned and thus create the desired results.132 However, this could be understood as suggesting that the utilitarian model of deterrence would be able to override the legal certainty and rights of the suspects and defendants, since the intended goal of criminal law would be to bring the prosecution to the stage of indictment and the arrest (of a presumably innocent individual). This is not only morally wrong but also wrong in principle since it makes it too easy to get comfortable with things like arbitrary preventive detentions and scapegoating,133 occurrences which negate the contemporary level of development and understanding of legal certainty and due process rights, as cornerstone of a legal order established on the basis of the rule of law and protection of human rights. This leads to the conclusion, assuming that the effective application of criminal-law mechanism can be conceived as a remedy in the first place, that it is more appropriate to examine how the desired outcome of criminal proceedings – the imposition of punishment on those guilty of the offence – can be explained as a human rights remedy, rather than to seek a theoretical justification for detaching the outcome from the procedure and conceiving the procedure as a remedy in itself. The international human rights practice also allows for such a course of analysis. Thus the IACtHR in the Caballero Delgado and Santana Case ordered that: 129 Aldana-Pindell, supra n. 1.72, p. 1444. 130 hrc (Views) Daniel Monguya Mbenge v. Zaire, no. 16/1997, 25 March 1983, para. 22. 131 W.M. Walker, “The Remedies of Law of the International Covenant on Civil and Political Rights: Current Trends and a Conceptual Framework for the Future”, 20 International Law and Politics (1988), p. 529. 132 Aldana-Pindell, supra n. 1.72, p. 1461. 133 S.P. Garvey, “Punishment as Atonement”, 46 ucla Law Review (1999), p. 1831.

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[R]eparations should consist of the continuation of the judicial proceedings inquiring into the disappearance of Isidro Caballero-Delgado and Mar’a del Carmen Santana and punishment of those responsible in conformance with Colombian domestic law.134 Similarly, in the Gäfgen case, when examining whether the criminal prosecution in itself irrespective of the nature of the sanction imposed on the offender could remedy inhuman treatment, the ECtHR held that without an adequate punishment, that is to say in case of “manifest disproportion between the gravity of the act and the punishment imposed,” it could not be said that the state discharged its procedural duty effectively.135 The ECtHR held the same, for instance, in Atalay v. Turkey where it stressed that lenient and inadequate punishment did not provide “adequate redress for the ill-treatment to which [the victim] was subjected.”136 It is thus not surprising that in N.D. v. Slovenia the ECtHR examined the domestic authorities’ compliance with their procedural obligation concerning the allegations of rape under the heading: “[t]he existence of a positive obligation to punish rape and to investigate rape cases”,137 or that in Nasr and Ghali v. Italy it considered the issue of “punishment of those responsible” as a natural outcome of the criminal proceedings.138 The above considerations accordingly direct the further discussion towards an examination of the manner in which punishment, rather than a procedure itself, can be construed as a remedy for human rights offences. But before proceeding to examine that question a brief look at an inclusive philosophical account, devised by H.L.A. Hart, on the meaning of the term punishment is in order. Hart sees punishment as a structure made up of five elements: (1) it must involve pain or other consequences normally considered unpleasant; (2) it must be for an offence against legal rules; (3) it must be of an actual or supposed offender for his offence; (4) it must be intentionally administered by human beings other than the offender; and (5) it must be imposed and administered by an authority constituted by a legal system against which the offence is committed.139 134 IACtHR (Judgment) Caballero Delgado and Santana v. Colombia, 8 December 1995, para. 69. 135 ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 123. 136 ECtHR (Judgment) Atalay v. Turkey, no. 1249/03, 18 September 2008, para. 46. 137 ECtHR (Judgment) N.D. v. Slovenia, no. 16605/09, 15 January 2015, paras. 54–62. 138 ECtHR (Judgment) Nasr and Ghali v. Italy, no. 44883/09, 23 February 2016, para. 272. 139 H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Oxford, Oxford University Press 2008), pp. 4–5.

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3.2.1 Punishment as Retribution Criminal punishment could be conceived as the central function of retribution and deterrence, which in the context of human rights remedies further relates to the question of restoration. Punishment as retribution140 does not in itself constitute restitution to the victim who, as Shelton noted, cannot be “un-tortured.” However, it places the society’s interests with the victim and by condemning the wrong it evades indifference to the victim, and thus condemns the feature marking the act of the perpetrator.141 Punishment could be considered as an element of corrective justice if corrective justice is conceived as a remedial doctrine applicable to an agent-specific context.142 Such corrective justice encompasses two aspects: juridical structure and a substantive principle. From the perspective of the juridical structure a remedy is measured only through a procedure of transaction between the parties irrespective of any material holdings. On the other hand, the substantive principle requires that those who have inflicted wrongful losses be obliged to repair them.143 In other words, the procedure in itself is not sufficient and has to be viewed in the context of an adequate outcome. There are two conflicting views of the function of retribution through punishment as a remedy to the victims of (human rights) offences. According to one position, the feelings of anger, hatred and revenge, which the victim may reasonably and legitimately experience after the offence as a part of selfrespect, should not be addressed through punishment because such retributive actions look backward and not forward to deterrence.144 Furthermore, according to the critics, the punishment is borne of the harsh and rigid justice such as vengeance, bloodlust, revenge, retaliation and the eye-for-an-eye logic. Thus, retributivism justifies punishment not on the grounds of any actual good that might be attained by it but only because the punished deserves to suffer through punishment.145

140 The philosophical account of retributivism encompasses: (1) the moral right to punish, and (2) the moral duty to punish which are based on the offence committed, (3) proportionality of the punishment to the offence committed, (4) annulment of the offence, and (5) punishment as the right of the offender (see further: I. Primoratz, Justifying Legal Punishment (New York, Humanities Press International 1990), p. 12). 141 Shelton, supra n. 2.101, p. 12. 142 D. Klimchuk, “On the Autonomy of Corrective Justice”, 23(1) Oxford Journal of Legal Studies (2003), pp. 50–51. 143 Ibid., p. 51. 144 Shelton, supra n. 2.101, p. 12. 145 R.L. Christopher, “Deterring Retributivism: The Injustice of ‘Just’ Punishment”, 96(3) Northwestern University Law Review (2002), pp. 847–848.

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At the same time, retributivism recognises that punishment is a form of public self-defence which should be imposed because that is right. In particular, a crime is the use of force or coercion contrary to right. Punishment, also as a force and coercion, essentially cancels the first coercion – it is a negation of the negation, which in consequence restores a right.146 Punishment thus, according to retributivism, serves abstract justice or right. Punishment is simply doing justice.147 As a result of such an approach, according to the critics, retributivism treats crime victims as a means to an end and not an end in themselves, which violates the Kantian’s rule that persons should never be treated as a means to an end but only as an end in themselves.148 Thus, retributivism uses victimrelative norms irrespective of the victims’ interests as a means of achieving punishment of the offender. This view of the purpose of punishment promotes some abstract concepts rather than the actual interests of victims. There is therefore a failure of retributivism to satisfy the positive duty to the crime victims.149 The other approach, justifying the function of retribution through punishment as a remedy to the victims, invokes the victims’ moral claims.150 Jean Hampton thus submits that any action causing a moral injury, that is an attack on the victim’s value or dignity, requires a retributive response for the purpose of repairing that kind of injury.151 In this sense, retribution is a response to a wrong which should vindicate the victim’s value denied by the wrongdoer. Accordingly, any retribution should aim to “re-establish the acknowledgement of the victim’s worth damaged by the wrongdoing, and […] to repair the damage done to the victim’s ability to realize her value.”152 The absence of that response (absence of punishment or an inadequate punishment) can cause a moral injury to the victim or his or her memory.153 Retribution should be accomplished by the state (criminal justice system) and Hampton’s theory should not be understood as suggesting that the victims themselves should be the agents of retribution. This is because the state is a guarantee of an 146 147 148 149

Ibid., p. 862. Ibid., p. 865. Ibid., p. 952. Ibid., pp. 952–953. See further: G.V. Bradley, “Retribution: The Central Aim of punishment”, 27(1) Harvard Law Review 2004, p. 26. 150 Shelton, supra n. 2.101, p. 13. 151 J. Hampton, “Correcting Harms Versus Righting Wrongs: The Goal of Retribution”, 39 Law Review (1992), p. 1666. 152 Ibid., p. 1686. 153 W. Quinn, “The Right to Threaten and the Right to Punish”, 14(4) Philosophy & Public Affairs (1985), p. 372.

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impartial agent of morality although there might be offences which would require higher or lesser intensity of the state’s engagement.154 The victim-based approach to the problem of retribution also argues that the punishment overcomes the dominance which an offender creates over the victim and re-establishes their equality.155 The punishment therefore serves to protect human dignity through the mechanisms of criminal law. Tatjana Hörnle and Mordechai Kremnitzer consider that human dignity could have two meanings in the context of criminal-law protection: as an individual right and an objective value. According to their theory, the former would be involved when a person is treated as an object while the latter concerns instances in which the individual waived his or her right to individual dignity or such an individual cannot be identified (absence of the victim).156 In this connection it should be also remembered that human dignity is a concept deeply rooted in constitutional and international human rights law.157 Punishment also relates to respect for human rights because the content of criminal law is rooted in the ensemble of conditions compromising the common good of a society. And some of the important aspects of these conditions include respect for basic human rights such as the right to life or physical integrity.158 Thus, the benefit for the victim cannot be artificially dissociated from the general social goals implicit in the application of criminal-law mechanisms. Or, as the ECtHR emphasised: [A]mong the main purposes of imposing criminal sanctions are retribution as a form of justice for victims and general deterrence aimed at prevention of new violations and upholding the rule of law. However, neither of these aims can be obtained without alleged perpetrators being brought to justice. Failure by the authorities to pursue the prosecution of the most probable direct perpetrators undermines the effectiveness of the criminal‑law mechanism aimed at prevention, suppression and punishment of unlawful killings.159 154 Hampton, supra n. 2.151, pp. 1693–1694. 155 G.P. Fletcher, “The Place of Victims in the Theory of Retribution”, 3 Buffalo Criminal Law Review (1999), p. 58. 156 T. Hörnle and M. Kremnitzer, “Human Dignity as Protected Interest in Criminal Law”, 44 Israel Law Review (2011), pp. 146–149. 157 See further: A. Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, Cambridge University Press 2015); ECtHR (Judgment) Bouyid v. Belgium [gc], no. 23380/09, 28 September 2015, paras. 100–101. 158 Bradley, supra n. 2.149, p. 21. 159 ECtHR (Judgment) Jelić v. Croatia, no. 57856/11, 12 June 2014, para. 90.

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The victim-focused approach to retribution also has its justification in the social psychology. Research in that field has yielded a six-stage model of the social psychological dynamics of retribution: (1) there is a perceived violation of a norm; (2) the violator’s intention is perceived as blameworthy; (3) these occurrences threaten or harm values related to the perceiver’s personal self or his or her status, or internalised group values; (4) the emotion of anger is provoked; (5) the cognitions and emotions foster reactions against the violator; (6) the anger then disperses during or following punishment and the cognitions return toward homeostasis and the norm is perceived to be vindicated.160 Without seeking to categorically adhere to any of the above positions with regard to the function of punishment as retribution,161 we should be mindful of a fallacy in perception associated with the term retribution. Retribution should be understood as a legal transaction justified by virtue of the relationship between an offence and the necessary social reaction to its consequences. In the discourse of contemporary society this is not an argument for making the wrongdoer suffer nor is it an evocation of or justification for the “eye for an eye” vengeance or revenge. The punishment imposed, in the sense of unpleasant consequences such as imprisonment, is a collateral consequence of the necessity to react to an imbalance of benefits and burdens in the society as a whole created by the offence.162 Accordingly, when a criminal infringement of the victim’s substantive right is vindicated by the elimination of the imbalance created by the offence, it is not done for the purpose of vengeance or revenge nor, to that matter, for the purpose of inflicting suffering on the offender. This can be rather observed as a transaction between the offence and the necessary social reaction to its consequences which, simply as a corollary, produces, among other things, suffering of the wrongdoer. 3.2.2 Deterrence through Punishment Punishment as deterrence appears even less grounded in the victim-focused human rights theories of remedies than does punishment within the concept of retributive justice. In this context one should be mindful of the distinction 160 N. Vidmar, “Retributive Justice: Its Social Context”, in M. Ross and D.T. Millers (eds.), The Justice Motive in Everyday Life (Cambridge, Cambridge University Press 2011), p. 292. 161 As it would mean unconditionally adhering to the idea of the duty to investigate and prosecute as a human rights remedy, which would be, in view of the complexity of the concept of effective application of criminal-law mechanisms in human rights protection, a manifestly injudicious oversimplification. 162 Fletcher, supra n. 2.128, pp. 416–418.

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between general and special deterrence through punishment. General deterrence assumes that punishment of the offender will deter other potential offenders from committing an offence, while special deterrence considers that through punishment the offender will be discouraged from committing further offences. In either case the predicted benefit of punishment is speculative.163 Still, if we accept that the nature of human rights remedies is to deter wrongful behaviour164 then we can certainly imagine a concept in which criminal punishment could also serve that aim. This is particularly so if deterrence is considered as a complementary, but secondary, aim to retribution through punishment.165 In the overall concept of human rights protection through criminal law, deterrence forms an ex ante positive obligation on the state to put in place effective criminal-law provisions to deter the commission of offences against the person.166 In this context, if the victim’s claim in human rights law to the effective application of criminal law mechanisms effectively means a request for punishment which in consequence deters the offender from causing further harm,167 then deterrence could at best be understood only as a complementary non-intended effect of the enforcement of positive obligations. But could it be construed as redress? Could we say that the victim has a human rights claim or a legitimate expectation against the state for redress through punishment of the offender in order to deter further offences of the same wrongdoer or other possible wrongdoers in future? If so, how does deterrence actually redress the victim (other than assuming that the victim predicts that in future he or she shall again fall victim to the wrongful conduct of the same or some other perpetrator)? In this context analytically important assumptions are found in the fact that punishment is an element of corrective justice and that in terms of punishment as redress human rights law places emphasis on the victim and the wrongdoer rather than on some abstract public interest. The explanation for the correlation between corrective justice and deterrence could thus be searched in tort law whose rationale is evidently similar to that of criminal law.168 163 Ibid., p. 414. 164 Shelton, supra n. 2.101, p. 14. 165 G.V. Bradley, “Retribution and the Secondary Aims of Punishment”, 44 American Journal of Jurisprudence (1999), pp. 120–122. 166 ECtHR (Judgment) Valiulienė v. Lithuania, no. 33234/07, 26 March 2013, para. 75. 167 Ibid., para. 85. 168 G.T. Schwartz, “Mixed Theories of Tort law: Affirming Both Deterrence and Corrective Justice”, 75 Texas Law Review (1997), p. 1815.

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This correlation was explained by Ernest Weinrib by conceiving corrective justice within a conceptually ordered sequence in which deterrence takes place.169 In the first component of this sequence, corrective justice relates to the normative structure informing a system in which liability and entitlement correlate. Corrective justice thus encompasses practical reason distinct from liability as a fair and coherent judicial phenomenon. In this mode of reasoning deterrence plays no role. It is only when these norms are actualised through the legal institutions we reach the next stage in the sequence. This is when corrective justice becomes operative through adjudication which endows it with public meaning and coercive legal consequences. The prospect of consequences motivates compliance with the law. Accordingly, this is the stage when deterrence comes into play because “for now corrective justice not only illuminates a system of justifications but is also presupposed in a set of concrete social institutions devoted to remedying and avoiding injustice.”170 Another victim-focused criminal law and tort law theory of deterrence explains the function of deterrence through an example in which deterrence comes into play when an individual who had been perceived as dangerous managed to dodge the public authorities’ supervision and was thus put in a position which allowed him or her to victimise. In these circumstances the established responsibility of the officials in charge of the offender’s supervision also serves as a deterrent to the direct benefit of the victim.171 This is therefore a form of indirect deterrent effect, which perhaps best explains the conceptualisation of the deterring function of punishment as a remedy for human rights offences. 3.2.3 Punishment and Restorative Justice Criminal law remedies in the context of restorative justice come conceptually as the third aspect in the structure of remedies in human rights law. Generally, the restorative justice movement is a framework of activities aimed at finding alternatives to punishment.172 There are three approaches to the relationship between the criminal justice system and restorative justice paradigm. In the first approach restorative justice is conceived as an integral part of criminal justice, making it more sensitive to the needs of victims and offenders. The second approach seeks to detach the restorative justice paradigm from the 169 E.J. Weinrib, “Deterrence and Corrective Justice”, 50 ucla Law Review (2002), p. 638. 170 Ibid., pp. 638–639. 171 F.G. Carrington, “Deterrence, Death, and the Victims of Crime: A Common Sense Approach”, 35 Vanderbilt Law Review (1982), p. 600. 172 Shelton, supra n. 2.101, p. 14.

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structure of criminal justice system. The third approach, commonly advocated amongst the supporters of the restorative justice paradigm, looks at an interdependence of the two systems, particularly on procedural grounds.173 Restorative justice has a procedural and substantive aspect. Substantively, restorative justice emphasises redress of the victim and reintegration of the offender as the key element. Such redress is associated with atonement, reconciliation, forgiveness and reintegration.174 Procedurally, restorative justice is a process in which the stakeholders (victims, offender and the affected community) take part in order to deal with the aftermath of an offence, which is underpinned by certain core values such as consensual participation, dialogue, mutual respect and a balance between the parties.175 In the context in which the mechanisms of criminal law would be conceived as human rights remedies, the restorative justice process, and the desired outcome, would imply the victim’s claim for a conference which would result in a democratic decision of all stakeholders overcoming the general punitive character of criminal law.176 If, for the purpose of this study, we further reduce this to the level of criminal investigation and prosecution as a criminal law remedy, then we are faced with two difficulties. The first difficulty concerns the question how restorative justice can be conceived within such a non-consensual process. That is, of course, relevant only in those instances in which the offender himself does not wholly partake in the universal spirit of disapproval of his own act.177 The second question is whether and how a punishment, as a conventionally expected outcome of the prosecution, could be considered as atonement. This discussion is related to the issues already mentioned in the context of retributive justice. However, it is again raised here because it becomes particularly relevant in the context of searching for the most appropriate response to past serious and systemic human rights abuses after a community has undergone a democratic transition, that is to say when restorative justice through reconciliation, forgiveness and reintegration always arises as a viable solution. 173 C. Rigoni, “Humanizing Criminal Justice? Restorative Approaches under Fair Trial Scrutiny”, European Yearbook on Human Rights (2014), pp. 475–476. 174 Shelton, supra n. 2.101, p. 15. 175 K. Doolin, “But What Does It Mean? Seeking Definitional Clarity in Restorative Justice”, 71 The Journal of Criminal Law (2007), pp. 428–431. 176 See further: J. Braithwaite, Restorative Justice & Responsive Regulation (Oxford, Oxford University Press 2002), p. 12. 177 D. Garland, “Durkheim’s Theory of Punishment: A Critique”, in D. Garland and P. Young (eds.), The Power to Punish: Contemporary Penalty and Social Analysis (London, Heinemann 1983), pp. 52–53.

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The acceptability of coercion, or an element of involuntariness, is one of the central questions of restorative justice.178 When restorative justice is understood as a complex structure of various elements (such as victim support, ­mediation, conferencing, or problem-oriented policing), underlined by the ­necessity for the engagement of two or more stakeholders, then the unwillingness of a stakeholder to participate in the process reduces the range of ­options.179 It could thus be inferred that involuntariness has no place in restorative justice because any possible fear of coercion is equal to punishment.180 Moreover, some have argued that the restorative justice process should operate as a separate and parallel system to the criminal justice system because the elements of the latter could undermine and convert the aims of restorative practices.181 However, a widely accepted view is that some form of coercion (or accountability) is necessary in order to empower the mechanisms of restorative justice.182 Some authors thus contend that it is not possible to view restorative justice out of the relevant legal system. It is rather a complementary process improving the quality, effectiveness and efficiency of the legal system as a whole. It could therefore be said that restorative justice only adds new and different practices to the traditional legal concepts and realities.183 A critique of restorativism, relevant to the problem of atonement through punishment, relates to its failure to recognise that securing atonement requires punishment. This critique was formed by Stephen Garvey who submits that “the goal of punishment should be atonement, but atonement requires punishment.”184 Garvey views atonement as a specific goal and a process. As a goal, it seeks to achieve reconciliation between the offender and the victim and reintegration of the offender as a member of the community in good standing, while as a process it could be conceived as expiation and reconciliation. In Garvey’s structure, expiation is the first stage of the atonement process consisting of repentance, apology, reparation and penance, whereby the emphasis is on the offender who should, in order to regain his good standing in the community, complete all stages of the process. The second stage is 178 Doolin, supra n. 2.175, p. 429. 179 T.F. Marshall, Restorative Justice: An Overview (London, Home Office 1999), pp. 7–8. 180 Doolin, supra n. 2.175, p. 429. 181 Marshall, supra n. 2.179, p. 8. 182 K. Richards, “Restorative Justice and ‘Empowerment’: Producing and Governing Active Subjects through ‘Empowering’ Practices”, 19(2) Critical Criminology (2011), p. 96; Doolin, supra n. 2.175, p. 430. 183 Marshall, supra n. 2.179, p. 8. 184 Garvey, supra n. 2.133, p. 1801.

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reconciliation or forgiveness. Here the emphasis is on the victim who should, in the ideal circumstances, forgive the offender after the latter has completed the four steps of the first stage of the process.185 Garvey believes that the issue of acquired guilt for the wrongdoing leads to atonement which should be most appropriately responded to by making amends.186 Criminal punishment plays an essential role in the context of reparation (as a step of expiation). In explaining this, Garvey starts from the perspective that most crimes have two possible consequences: material harm and moral wrong done to the victim. Amends for the harm and wrong could be reparation and restitution. In achieving these responses to harm, criminal and civil (tort) remedies cannot be separated. This is because reparation and restitution in various criminal justice systems are becoming, or already are, prominent and familiar features. However, reparations can make amends only for the harm caused to the victim, while the wrong must be subjected to punishment.187 This is because crime challenges not only the material relationship between the victim and the offender but also their moral relationship. Thus, crime ­degrades, demeans, diminishes and dishonours victims, irrespective of any material damage it may cause. Punishment is therefore important because it conveys a message that the society condemns the wrongdoing of the offender and stands by the victim in his or her pain.188 Against this background, Garvey sees his theory of atonement as an alternative to the classical retributivism and deterrence (which conceive punishment without atonement) and restorativism and libertarianism (which aim for atonement without punishment).189 In his model of punishment atonement is the goal of punishment and the punishment is necessary to achieve that goal.190 An issue related to the problem of atonement through punishment is the necessity of criminal prosecutions and punishment within the restorative processes in the aftermaths of grave systemic human rights violations. The theory of restorativism has already recognised that fundamental human rights should set legal limits on what restorative processes are allowed to do. According to one such proposal, restorative process should trump restorative values when there is no issue of breach of fundamental rights. Accordingly, as long as the 185 186 187 188 189 190

Ibid., p. 1804. Ibid., pp. 1810 and 1812. Ibid., pp. 1816–1818. Ibid., p. 1821. Ibid., p. 1829. Ibid., p. 1858.

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punishment is not cruel, degrading or excessive, the decision of the restorative conference imposing such punishment must be accepted.191 The question of the necessity for criminal prosecutions and punishments is particularly prominent in the context of transitional justice. Generally understood this is a form of justice associated with the political change and characterised by legal responses confronting the wrongdoings of repressive predecessor regimes.192 One of the difficulties in the decision-making process of transitional justice involves balancing between two choices in responding to past human rights abuses: justice or truth.193 A solution commonly arising in a democratic transition, amid the truthjustice debate, is the application of amnesties. However, with regard to such practices in Latin American countries, the victims’ right to a remedy, which includes a criminal investigation, prosecution and punishment, have trumped the attempts to overcome the obligation of effective prosecution of human rights abuses by the application of amnesties.194 The same conclusion, although not expressed in such categorical terms, follows from the ECtHR case-law concerning the application of amnesties for gross human rights violations.195 Nevertheless, some authors have argued that when such prosecutions are conceived as a form of mandatory retribution, it could only create further difficulties such as abuses of rights. Thus, irrespective of how strong the retributive impulse concerning a human rights violation may be, the prosecutions must be counterbalanced with the aim of preserving the democratic system.196 On the other hand, for others, the minimum justice requires adequate punishment for gross human rights violations in order to achieve accountability, retribution and equal treatment under the law.197 3.2.4 Criminal-law Remedies and the Right to Truth In the context of restorative justice, the duty to investigate, prosecute and punish, as the modalities of reparations, also brought the idea of the right to know 191 Braithwaite, supra n. 2.176, pp. 12–13. 192 R.G. Teitel, “Transitional Justice Genealogy”, 16 Harvard Human Rights Journal (2003), p. 69. 193 J. Elster, Closing the Books: Transitional Justice in Historical Perspective (Cambridge, Cambridge University Press 2004), pp. 116–117. 194 L.J. Laplante, “Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes”, 49(4) Virginia Journal of International Law (2009), pp. 935–940. 195 See further: ECtHR (Judgment) Marguš v. Croatia [gc], no. 4455/10, 27 May 2014. 196 C.S. Nino, “The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina”, 100(8) The Yale Law Journal (1991), p. 2620. 197 Aldana-Pindell, supra n. 1.72, p. 1444.

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the truth in the context of criminal justice.198 This concept initially developed with regard to the right to obtain the relevant information in the events of enforced disappearances, but has since then been advocated in other areas concerning gross human rights violations199 to the extent that some authors see it as an emerging fundamental principle of international human rights law.200 An inclusive account of how the right to truth may be conceived in the context of prosecutions as a remedy for grave human rights violations was given by Raquel Aldana-Pindell. She submits that an empirical study into the torment of the victims of human rights violations shows that in the aftermath of such events victims seek prosecutions in order to obtain truth and get justice. This cannot be achieved through alternative forums such as truth commissions since they fail to meet the requirements of justice according to which the prosecution and punishment of the perpetrators must correspond to the grave nature of the violations.201 Aldana-Pindell sees four central reasons for the right to truth: (1) alleviation of the victims’ suffering; (2) vindication of the memory and status of victims; (3) encouragement for the state to meet its dark past; and (4) achieving the necessary reforms. In meeting these goals, the right to truth must conform to certain substantive and procedural requirements.202 From the substantive perspective, victims have the right to learn what happened, why the crime was committed and who committed it. The latter aspect is closely related to the victims’ demand for retribution and equal treatment under the law and therefore direct perpetrators and their commanders must always be identified.203 The procedural right to truth is essentially a requirement for ascertaining truth 198 Laplante, supra n. 2.194, p. 974; Bárd, supra n. 1.53, pp. 196–197. 199 T. Antkowiak, “Truth as Right and Remedy in International Human Rights Experience”, 23 Michigan Journal of International Law (2002), p. 981; D. Groome, “The Right to Truth in the Fight against Impunity”, 29(1) Berkeley Journal of International Law (2011), pp. 175– 199; K.  Bonneau, “La jurisprudence innovante de la Cour interaméricaine des droits de l’homme en matiere de droit à réparation des victimes de violations des droits de l’homme”, in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), p. 370; F. Fabbrini, “The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations Committed in the Fight Against Terrorism”, 14 Human Rights Law Review (2013), pp. 99–102. See also document on the right to truth by un, ­Human Rights Council, A/HRC/21/L.16, 24 September 2012. 200 McGonigle Leyh, supra n. 1.34, p. 294. 201 Aldana-Pindell, supra n. 1.72, p. 1438. 202 Ibid., p. 1439. 203 Ibid., pp. 1439 and 1441.

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through criminal process because that is the only way to ensure individual accountability.204 It would arguably follow from the above that the right to truth, which developed in the context of human rights law, as a remedial measure in cases of gross human rights offences, is an operative legal conception only in so far as its theoretical premises contemplate the relevant normative and conceptual limitations on the quest for truth implied in the context of criminal process. We should thus be mindful of several issues in this respect. To begin with, we have already observed the epistemological limitations of criminal process, in which the most likely objective to be attained is “procedural truth” because of the evidentiary limitations on the truth-seeking endeavour. The proposals advancing the quest for truth in the context of criminal procedure overlook the fact that the central question of the criminal process is to decide about the guilt or innocence of one accused of crime. It is a process in which discovery is limited by various constraints, such as procedural and evidentiary rules and concern for individual rights of those accused of an offence.205 It is thus not an exercise in which all have put their cards on the table.206 In other words, as Damaška explained, “[t]he pursuit of truth in the criminal process is not an untrammelled exercise in cognition.”207 Such normative limitations are a feature determining all contemporary models of criminal procedure irrespective of the particular modalities in which a system operates. Even those inquisitorial, or rather continental, systems of criminal procedure that conceptually place emphasis on the truth-finding process208 restrain this process by, for instance, prescribing an obligation to warn a suspect before the first questioning of his or her right to remain silent.209 Thus, not only do procedural rules not envisage putting all cards on the table, they prevent the accused from being forced to do so.210 204 Ibid., p. 1441. 205 M.R. Damaška, “Truth in Adjudication”, 49 Hastings Law Journal (1998), pp. 301–302. 206 W.J. Brennan, “The Criminal Prosecution: Sporting Event or Quest for Truth?”, 3 Washington University Law Quarterly (1963), pp. 280–281. 207 M.R. Damaška, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study”, 121 University of Pennsylvania Law Review (1973), pp. 578–580. 208 Note that Damaška provided a detailed account for this argument based on the structure of criminal proceedings, ideological and historical considerations (Ibid., pp. 580–587). 209 W. Wu and T. Vander Beken, “Relativism and Universalism in Interrogation Fairness: A Comparative Analysis Between Europe and China”, 19(3) European Journal of Criminal Policy and Research (2013), p. 194. 210 See, however, for the Chinese criminal justice system: Ibid., p. 203.

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There is therefore no real difference between the inquisitorial and accusatorial criminal justice systems in this context.211 Traditionally, the latter has been envisaged as a process in which two parties put forward and confront their versions of truth, challenging each other’s accuracy, and thereby bring about a composite picture of truth.212 By contrast, the inquisitorial system has been envisaged as a process in which neutral legal officers take actions (interrogations of suspects and witnesses) in order to collect evidence. However, as one commentator has observed, both of these systems have been unsuccessful in reaching the goal of ascertaining the truth. The adversarial system has failed due to its many unrealistic assumptions, such as by ignoring the fact that each party only partially presents the truth and essentially wants to divert from it, and the fact that the parties are not on an equal footing in collecting evidence.213 And the inquisitorial system, after abandoning torture in obtaining the relevant evidence and accepting due process rights, now faces the same problems in the quest for truth as the adversarial system does. Moreover, by deferring the quest for truth to a neutral magistrate who, by the very nature of things, does not have the same interest as the parties in collecting evidence, the inquisitorial system lacks the necessary initiative in obtaining truth, which, from this perspective, inevitably makes the whole process imperfect.214 It is therefore necessary to make a clear distinction between the search for truth about an event as a historical occurrence215 and the quest for truth in the context of a formal legal process. The ECtHR explained this by noting: The Court further considers that the reference to ‘procedural acts’ must be understood in the sense inherent in the procedural obligation under Article 2 or, as the case may be, Article 3 of the Convention, namely acts 211 Damaška argued that criminal process in the context of the non-adversary system in its continental variant is likely to produce more precise factual findings (Damaška, supra n. 2.207, pp. 587–588). 212 See further: P.J. Henning, “Lawyers, Truth, and Honesty in Representing Clients”, 20 Notre Dame Journal of Law, Ethics & Public Policy (2006), pp. 209–278; Brennan, supra n. 2.206, pp. 1–18. 213 For a tentative attempt of rethinking the adversarial system in the context of the search for truth see: M.E. Frankel, “The Search for Truth: An Umpireal View”, 123(5) University of Pennsylvania Law Review (1975), pp. 1031–1059. 214 T. Weigend, “Is the Criminal Process about Truth? A German Perspective”, 26(1) Harvard Journal of Law & Public Policy (2003), pp. 157–161. 215 See further: K. Turković, “The Value of the icty as a Historiographical Tool”, in T. Kruessmann (ed.), icty: Towards a Fair Trial (Cambridge, Intersentia 2009).

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undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party … This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth.216 Similarly, the IACtHR stressed that: [T]he ‘historical truth’ documented in special reports, or tasks, activities and recommendations issued by special commissions, like the one in this case, neither completes nor replaces the State’s obligation to establish the truth and investigate crimes through judicial proceedings. This Court has established that the obligation to investigate the facts, prosecute, and, if applicable, punish those responsible for a crime that constitutes a human rights violation, is an obligation that derives from the American Convention, and that criminal liability must be determined by competent judicial authorities, strictly adhering to the rules of due process set forth in Article 8 of the American Convention.217 Let us assume from the above that the quest for truth, as conceptualised in human rights law, should not be understood as an endeavour to be achieved at the expense of procedural fairness nor that is it necessarily the search for a perfectly accurate account of a historical event. As seen from the above discussion, by holding otherwise, we would be extremely close to contradicting the basic presumption that procedural perfection is unattainable and that there is no conceivable system of procedure that can guarantee perfect accuracy.218 At the same time, by engaging in such an endeavour which is bound to fail we would diminish the importance of the fair trial guarantees and the rule of law. Thus, by avoiding any conceptual misconceptions, we come to the conclusion that the concept of truth from the perspective of human rights law is at best related to imperfect procedural justice. The discussion essentially turns around case accuracy or the validity of the outcome of a criminal process.219 216 ECtHR (Judgment) Janowiec and Others v. Russia [gc], nos. 55598/07 and 29520/09, 21 October 2013, para. 143. 217 IACtHR (Judgment) Ibsen Cárdenas and Ibsen Peña v. Bolivia, 1 September 2010, para. 158. 218 Solum, supra n. 2.28, p. 185. 219 Ibid., pp. 243–247.

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The quest for truth is an attempt to dispel any doubts and suspicion by “exposing the occurrence of serious wrongdoing and seeking to avoid a recurrence.”220 In reality therefore truth is essentially a procedural truth, which in inquisitorial systems operates as an approximation to the historical facts necessary for a credible judgment, and in adversarial systems it is a version of facts acceptable to all those concerned with the outcome of the process.221 This has led some authors to argue that an outmoded notion of the search for truth in the context of criminal procedure can only be viewed in the context of a just and fair trial.222 This is because, due to the evidentiary limitations and the burden of proof in criminal trials, truth in the criminal law theory can in general be construed in the following way: Criminal justice system truth is not ‘truth’ in the ‘what really happened’ sense. It is, rather, a ‘truth’ that recognizes the likelihood of error and dictates its direction. If the ‘truth’ arising from the imperfect world of criminal trial re-creation is wrong, it is to be wrong in favor of the criminal defendant – wrong in favor of liberty.223 Another issue arising in the proposal to conceive the right to truth in the context of criminal-law mechanisms is the possible counter-effect that such quest could produce towards the victims and the general public. The danger lies in the difficulty for the general public to understand complex procedural rules and other limitations of criminal trials.224 There could, for example, exist a video recording of an offender committing a human rights offence which could for some reason become available to the general public. At the same time, however, the video recording at issue might not be suitable for admission into evidence because it was unlawfully obtained. This clear limitation on the search for truth is perhaps self-evident to a lawyer but could be hard to understand for the victim or the general public, who may not be sufficiently knowledgeable about the criminal procedure law to understand the underlying logic of the relevant epistemological limitations. 220 High Court of Justice of England and Wales, [2015] ewhc 715 (Admin), 17 March 2015, para. 162. 221 Weigend, supra n. 2.214, pp. 170–171. 222 G.M. Bradely and J.L. Hoffmann, “Public Perception, Justice, and the ‘Search for Truth’ in Criminal Cases”, 69 Southern California Law Review (1996), pp. 1268 and 1280. 223 S.H. Goldberg, “What was Discovered in the Quest for Truth”, 68 Washington University Law Quarterly (1990), p. 52. 224 Bradely and Hoffmann, supra n. 2.222, pp. 1267–1271.

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Of course, this is true only to the extent to which in the prosecution of a crime there is a conflict of interest between the offender, whose interest is to be acquitted, and the general public, whose interest is to see the offender convicted and punished. This conflict, theoretically, could have a narrow limit or it does not have to exist at all. Once it is realised, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, the clash of interest operates only within a very narrow limit; one where the evidence is such that the guilt of the accused should be established. If the accused is innocent, or his or her guilt cannot be proved, both the public interest and the interest of the accused require an acquittal.225 There is, however, a strong argument that this philosophical construction faces some obvious difficulties in reality. Thus, the observed constrains on the right to truth must be acknowledged and observed. Obligation to Investigate and Prosecute in the Structure of the Right to a Remedy In the case-law of the ECtHR the application of criminal-law mechanisms in human rights protection has a broader meaning when conceived in the context of the right to a remedy. In such instances it includes the possibility of obtaining compensation for the breaches of human rights.226 These principles are accordingly applicable whenever the substantive right or interest at issue may be protected by criminal law. Thus, for instance, the criminal-law mechanisms in the structure of the right to a remedy exist with regard to the violations of Article 8 echr (right to respect for private life) and Article 1 of Protocol No. 1 (right to property)227 or Article 5 echr (right to liberty and security).228 The requirement of effectiveness of criminal investigation and prosecution in the context of the right to a remedy essentially relates to the question of effectiveness of the procedural obligation. However, although it may be raised as an autonomous issue, it in principle relates to the effective possibility of obtaining damages.229 Accordingly, when there is no issue as to the possibility of obtaining damages, and when the application of criminal-law mechanisms is

3.3

225 Coutts, supra n. 1.13, p. 3. 226 ECtHR (Judgment) Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005, para. 183. 227 ECtHR (Judgment) Esmukhambetov and Others v. Russia, no. 23445/03, 29 March 2011, paras. 162–164. 228 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 256. 229 ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 162.

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examined in the general context of procedural obligation, there is no separate issue to be examined under the right to remedy, irrespective of whether there has been a violation of the procedural obligation230 or not.231 A profound link between the procedural obligation and the right to a remedy with regard to the application of criminal-law mechanisms was contemplated in the case-law of the IACtHR. Article 25(1) achr, which provides the right to a remedy, relates both to the procedural issues of a fair trial under Article 8 achr and the general obligations under Article 1(1) achr.232 In its case-law, the IACtHR explained the structure in which the right to a remedy is provided under the achr by noting that an effective discharge of the obligations under Article 25(1) achr is assessed against the rules of due process of law under Article 8 achr. Accordingly, the victim of a human rights offence must be provided with all procedural guarantees “in furtherance of the discovery of the truth, the punishment of the offenders as well as to be awarded an adequate compensation.”233 Similarly to the case-law of the ECtHR, any failures in the criminal investigation and prosecution, will consequently lead to the conclusion that the requirements of the right to a remedy have not been met.234 The broad structure of the right to a remedy and its substantial link to the requirement of investigation and prosecution is also construed under the ­iccpr. The hrc explained that Article 2(3) iccpr requires “accessible and effective” remedies to vindicate the infringed rights, which encompasses the duty of investigation and a possibility of obtaining compensation and reparation. This in particular relates to the duty to bring to justice the perpetrators of human rights violations. Accordingly, a failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.235 Similarly to the case-law of other international human rights adjudicatory mechanisms, the AComHPR has also, in the context of effectiveness of domestic legal recourses, associated the 230 See, for example, ECtHR (Judgment) Dimov and Others v. Bulgaria, no. 30086/05, 6 ­November 2012, para. 89. 231 ECtHR (Judgment) Maskhadova and Others v. Russia, no. 18071/05, 6 June 2013, para. 193. 232 A.A. Cançado Trindade, “The Developing Case Law of the Inter-American Court of Human Rights”, 3(1) Human Rights Law Review (2003), p. 14; IACtHR (Judgment) CastilloPáez v. Peru, 3 November 1997, paras. 82–83. 233 IACtHR (Judgment) Ximenes-Lopes v. Brazil, 4 July 2006, paras. 192–193. 234 IACtHR (Judgment) Suárez Peralta v. Ecuador, 21 May 2013, para. 122. 235 ccpr, supra n. 1.82, paras. 15–18.

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problem of ineffectiveness of criminal prosecution and the impossibility of obtaining adequate compensation.236 The above discussion leads to the conclusion that, in the context of the right to a remedy, an effective application of criminal-law mechanisms is conceptually always linked with the question of adequate compensation for the infringement of a right.237 4

Procedural Obligation as an Inherent Component of Human Rights Norms

The concept of procedural obligation in international human rights law initially pursued the idea of an implied obligation in the substance of a right.238 In the first case adjudicated under the echr, McCann, Farrell and Savage v. the United Kingdom, where the procedural obligation arose as the relevant issue, the EComHR noted that procedural protection under Article 2 echr (right to life) must be regarded as an aspect of the criterion protected by law. It held that an ex post facto review of the circumstances of a killing was indispensable in ensuring confidence in the administration of justice and in the state’s adherence to the principles of the rule of law. Accordingly, an implied procedural aspect of a right, in the concrete case the right to life, could by itself arise as an issue in the event of lack of any effective procedure to investigate the cause of the deprivation of life.239 This suggests, firstly, that the procedural obligation can be conceived as an implied aspect or parcel of a substantive right without the necessity to construe it within another conceptual framework (such as the right to a remedy); and secondly, that, even when conceived as an inherent component of a right, it is still a detachable obligation which could “by itself raise an issue” under the substantive provision. This was accepted by the ECtHR which, endorsing the EComHR’s report, stressed that:

236 AComHPR (Communication) Zimbabwe Human Rights ngo Forum v. Zimbabwe, no. 245/02, May 2006, paras. 211–212. 237 Note, however, that the concept of the rule of law indicates that a prime concern of remedies is to secure that the law is observed rather than to secure the award of damages (Gardner, supra n. 1.19, p. 89). 238 See further: Mahoney, supra n. 2.39, p. 1012. 239 EComHR (Report) McCann, Farrell and Savage v. the United Kingdom, no. 18984/91, 4 March 1994, paras. 191–193.

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… the State’s general duty under Article 1 (art. 2+1) of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.240 However, in McCann the investigation at issue, which took the form of a coroner’s inquest, did not lead to a separate violation of the echr nor did it prompt the ECtHR to specify further requirements of the procedural obligation. The ECtHR simply satisfied itself that such public inquest proceedings, involving detailed examination of the circumstances of the case, irrespective of the alleged shortcomings, did not “substantially hamper the carrying out of a thorough, impartial and careful examination” of the circumstances of the case.241 Using the same conceptual logic from McCann, and after examining several Turkish cases involving an alleged inadequacy of the investigation into the deprivations of life under Article 2 echr (right to life),242 the ECtHR very early developed the same concept in the context of Article 3 echr (prohibition of torture) in the Assenov case, concerning a typical human rights offence of police ill-treatment. On the facts of the case, after scrutinising the effectiveness of criminal investigation in the circumstances of the allegations of police illtreatment, the ECtHR found a violation of Article 3 echr.243 This detachable implied aspect of the substantive rights was for the first time conceived as a procedural limb244 in the judgment of Ülkü Ekinci v. Turkey 240 ECtHR (Judgment) McCann and Others v. the United Kingdom [gc], no. 18984/91, 27 ­September 1995, para. 161. See further: ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 231. 241 ECtHR (Judgment) McCann and Others v. the United Kingdom [gc], no. 18984/91, 27 ­September 1995, paras. 162–163. 242 ECtHR (Judgment) Kaya v. Turkey, no. 22729/93, 19 February 1998, para. 86; ECtHR (Judgment) Ergi v. Turkey, no. 23818/94, 28 July 1998, para. 82; ECtHR (Judgment) Güleç v. Turkey, no. 21593/03, 27 July 1998, para. 77; ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, para. 98. 243 ECtHR (Judgment) Assenov and Others v. Bulgaria, no. 24760/94, 28 October 1998, paras. 102–106. 244 In fact, the term procedural limb was used for the first time in the dissenting opinion of Judge C.L. Rozakis joined by Judges G. Bonello and V. Strážnická in the case of Calvelli and Ciglio v. Italy where he referred to “procedural limb of the protection of the right to life” when arguing that the procedural requirements under Article 2 echr cannot be satisfied with the civil law guarantees but only through the mechanisms of criminal law (ECtHR (Judgment) Calvelli and Ciglio v. Italy [gc], no. 32967/96, 17 January 2002).

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in which, notably in the context of a suspicious death and not (proved) killing by a state agent, the ECtHR noted that the absence of an effective investigation into the killing gave rise to “a violation of Article 2 of the Convention under its procedural limb.”245 The obligation to conduct an effective investigation and, where appropriate, prosecution was also conceived as an implied aspect in respect of some other rights, such as, for instance, Article 4 (prohibition of slavery and forced labour),246 Article 5 (right to liberty and security),247 and Article 14 (prohibition of discrimination)248 echr. On the other hand, there are provisions of the echr which could reasonably entail such an obligation although it has not so far been directly derived from the substantive right itself but rather conceived as an instance in the general structure of positive obligations or the right to a remedy. In this context several authors have asserted that essentially all provisions of the echr imply the procedural obligation, purpose of which is to secure effectiveness of the substantive rights.249 Similar to the ECtHR case-law, the IACtHR has interpreted several provisions of the achr as implying a procedural obligation to conduct an effective investigation and prosecution. Although, in principle, such an obligation is primarily conceived in the context of Article 8 (right to a fair trial) and Article 25 (right to judicial protection) achr,250 the IACtHR has also conceived it as “part of the general obligation to ensure the rights recognized in the Convention.”251 The possibility for deduction of the procedural obligation from a substantive norm, without conceiving it within another conceptual framework, was 245 ECtHR (Judgment) Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002, para. 146. 246 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 288. 247 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 233. 248 ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 161. 249 Sudre, supra n. 2.1, p. 232; S. Rabiller, “Clair-obscur des obligations procédurales jurisprudentielles (À propos des obligations positives d’ordre procédural dans la jurisprudence de la Cour européenne des droits de l’homme)”, 394(147) Petites affiches (2005), p. 8. 250 K. Kamber, “Medical Negligence and International Human Rights Adjudication: Procedural Obligation in Medical Negligence Cases under the American Convention on Human Rights and the European Convention on Human Rights”, in Y. Haeck, O. RuizChiriboga and C. Burbano Herrera (eds.), The Inter American Court of Human Rights: Theory and Practice, Present and Future (Mortsel, Intersentia 2015), p. 185. 251 IACtHR (Judgment) Gutiérrez and family v. Argentina, 25 November 2013, para. 76; IACtHR (Judgment) Albán-Cornejo et al. v. Ecuador, 22 November 2007, para. 50.

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also envisaged in the practice of the AComHPR which, by drawing inferences from other international mechanisms,252 held that an obligation to the victims to effectively investigate the acts of ill-treatment that impacted on their dignity and punish the perpetrators is an implied aspect of the substantive norm prohibiting ill-treatment.253 The AComHPR has also held that this obligation is so intrinsically related to the state’s general obligation under Article 1 achpr that a failure to thoroughly investigate the violations and to institute mechanisms to protect the victims from further violations runs counter to the state’s obligations under that provision.254 The interpretative method allowing for the expansion of the substantive scope of human rights norms by deriving the procedural obligation from the substantive aspect of a right is related to the interpretation of the general nature and purpose of international human rights treaties. This is primarily the requirement for a teleological interpretation of human rights norms and the necessity to have rights which are practical and effective.255 Such an approach is in compliance with the character of human rights treaties and their influence on the notion of public order in the area of their application. This requires particular caution against the possibility of a restrictive interpretation of the guarantees contained in human rights treaties.256 The principle of effectiveness in the interpretation of human rights guarantees is of a particular importance in this context. It is implied in Article 31(1)

252 It is interesting that the relevant inferences were drawn from the iccpr for conceiving the procedural obligation within the substantive norm itself. The hrc, as a rule, conceives the procedural obligation under the iccpr from the requirement of an effective remedy under Article 2(3) iccpr or the right of individual communication under Article 4(2) of the Optional Protocol to the iccpr (see for example: hrc (Views) Salem Saad Ali Bashasha v. Libyan Arab Jamahirya, no. 1776/2008, 20 October 2010, paras. 7.4 and 9). 253 AComHPR (Communication) Egyptian Initiative for Personal Rights & Interights v. Egypt, no. 323/06, December 2011, para. 208. 254 Ibid., para. 273. 255 K. Dzehtsiarou and C. O’Mahony, “Evolutive Interpretation of Rights Provisions: A Comparison of the European Court of Human Rights and the u.s. Supreme Court”, 44(2) Columbia Human Rights Law Review (2013), pp. 356–359; A. Mowbray, “The Creativity of the European Court of Human Rights”, 5(1) Human Rights Law Review (2005), p. 78. 256 A. Orakhelashvili, “Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights”, 14(3) European Journal of International Law (2003), p. 530.

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of the Vienna Convention on the Law of Treaties257 and has become the cornerstone in the interpretation of international human rights treaties. This principle requires that among different possibilities of interpretation primacy must be given to the interpretation that is most likely to guarantee the effectiveness of the guarantee at issue.258 The requirement for the interpretation of international human rights treaties in the way to secure their effective application is embedded in their very nature. Unlike other international treaties, human rights treaties do not aim at achieving reciprocity in the exchange of rights and benefits between the contracting parties. They rather aim to promote the interests of third-party beneficiaries. It is this specific character of international human rights treaties which requires that they be interpreted in a manner sufficiently favourable to the effective protection of individual rights.259 The concept of effectiveness in the interpretation of human rights norms requires positive action which extends, inter alia, to proper investigative process when a crime has been committed. Hence, the reference to Article 1 echr in McCann should be understood as a normative basis for deduction of the procedural obligation from Article 2 echr through which the statutory command under that norm becomes practical and effective.260 In this sense, Article 1 echr, although in essence fundamental, could be understood as a supplementary mechanism of interpretation of Article 2 echr, similarly to Article 13 echr which provides for the right to an effective remedy.261 Accordingly, the full scope of the right to life under Article 2 echr can be conceived only if that provision is read in conjunction with the guarantees provided under Articles 1 and 13 echr. In other words, Article 1 echr, by extending the scope of, for example Articles 2 or 3 echr as in McCann and Assenov, provides a detachable and separate guarantee which can be denoted as the procedural aspect of the right and which can be violated irrespective of a 257 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331. 258 D. Rietiker, “The Principle of ‘Effectiveness’ in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law – No Need for the Concept of Treaty Sui Generis”, 79 Nordic Journal of International Law (2010), p. 256. 259 K. Mechlem, “Treaty Bodies and the Interpretation of Human Rights”, 42 Vanderbilt Journal of Transnational Law (2009), p. 912. 260 See further: Ibid., p. 257. 261 Orakhelashvili, supra n. 2.256, p. 553.

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full compliance with the substantive aspect of the same right.262 Conceptually speaking, the same is true for all other rights. 5

Instead of Conclusion: Conceiving the Procedural Obligation within a General Conceptual Framework

There are no firm conceptual frameworks for conceiving the procedural obligation as a comprehensive separate and autonomous duty, as aspiringly advanced in international human rights law, nor are there, for that matter, any rankings or classifications with regard to the specific obligations penetrating the criminal law discourse. This does not necessarily create any substantial disadvantage for the justification of the concept, or for the construction of relevant principles in international human rights law. The procedural obligation can be arguably demonstrated through the three above observed approaches simultaneously, without drawing any firm conclusions as to their rankings and without engaging them into a single conceptual framework.263 Nevertheless, the absence of a conceptual framework affects the understanding and development of the idea as well as the coherence of its effective domestication and implementation. Thus, similarly to the problem of positive obligations in general,264 the procedural obligation could be claimed everywhere and, at the same time, the evaluation of the appropriate response to this claim would be vague, unclear or sometimes even illogical. One of the questions attracting the attention of legal scholars is the problem of legitimacy of the interpretative techniques creating further positive o­ bligations on states. Colombine Madelaine identified this problem in the powers of an international judge to impose positive obligations on the states and thereby to substitute the national legislator by asserting the respective constitutional role. This, according to Madelaine, could create a misunderstanding between the international court and national authorities which are bound in a relationship of mutual need in enforcing the standards of human rights and democracy.265

262 Ibid., p. 552. 263 See for example: Aolain, supra n. 1.99, pp. 33–37. 264 Xenos, supra n. 2.37, p. 4. 265 C. Madelaine, La technique des obligations positives en droit de la Convention européenne des droits de l’homme (Doctoral thesis, Université Montpellier 1, École doctorale droit et science politique 2012), pp. 549–550.

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Similar problems have been observed in the context of direct deduction of the procedural obligation from the substantive human rights norms. Stéphanie Rabiller, observing the interpretative techniques for such a reduction, has found that these clauses reinforce the effectiveness of substantive human rights but also inevitably raise concerns as to the possible legislative activity under the pretence of judicial interpretation. She therefore considers that, even if the extensive interpretation of human rights guarantees is justified, the fact remains that the procedural obligation places new positive obligations on states.266 There is a respectable list of other authors who have also raised various questions with regard to the juridical legitimisation of the concept of ­procedural obligation and the lack of comprehensiveness and clarity in international human rights law and practice. The predominant part of these questions relates to the lack of clarity in structuring the relevant concepts of international human rights law in a comprehensive manner that would allow avoiding misconceptions and obvious duplications in international human rights adjudication. These discussions essentially revolve around the following questions: (1) the primacy of the substantive or procedural protection; (2) the relationship between the procedural obligation and the right to a remedy; and (3) the manner of differentiation of the concept of procedural obligation within the general structure of positive obligations in human rights law. With a view to concluding the preceding assessment of the three approaches in human rights law giving rise to the procedural obligation, the discussion that follows will seek to address some of these conceptual doubts by putting the relevant relations in a wider perspective of the pertinent human rights and criminal justice discourse. 5.1 Substantive or Procedural Primacy There is a tendency in international human rights adjudication for the applicants to put forward their substantive complaints, giving little weight to the procedural issues, and for the international adjudicatory bodies to concentrate on procedural issues. The adjudicatory bodies tend to reject the main complaint and subject the procedural issue to a thorough analysis. Wolfgang Strasser sees a fallacy in that approach as he cannot discern any relevant reason why an applicant should insist on his or her procedural rights if the main sub-

266 Rabiller, supra n. 2.249, p. 8.

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stantive complaint has been rejected.267 For Strasser, when a substantive right has been violated it is somehow presumed that even a valid procedure would not have created a different result. He therefore raises the question whether the procedural guarantees are empty formalities with no bearing on the substantive rights.268 In advancing his arguments, Strasser submits an interesting approach to the procedural obligation. According to that approach, the relevancy of the procedural obligation lies in the necessity for the national authorities to investigate the circumstances of the case so that the mechanism of international adjudication could conduct a reasonable supervision of all the relevant aspects of the complaints brought before it. He therefore proposes that the procedural issues be examined first and the substantive aspects be reserved. This would allow treating the procedural issues as an indisociable aspect of the substantive right and not an aim in itself because the presumption would be that only a valid procedure could create a valid outcome. In practice, when finding a violation of the procedural right, the international court should confine itself to noting that there is no basis to examine the substantive aspect of the right because a doubt would otherwise remain as to what the outcome of the case would have been had the proceedings been fair and valid. This would, according to Strasser, eventually strengthen international adjudication and enhance the principle of subsidiarity.269 The (confusing) interrelation between substantive and procedural aspects of human rights can be well observed in the case-law of the ECtHR. For instance, in the case of Ersoy and Aslan v. Turkey the ECtHR found no violation of the substantive aspect of Article 3 echr (prohibition of torture) with regard to the allegations of the applicants’ ill-treatment by the police during manifestations. This conclusion was based on the fact that the applicants were not able to prove the alleged ill-treatment as there were no relevant documents available and no witnesses could credibly confirm their version of the events.270 However, three 267 W. Strasser, “The relationship between substantive rights and procedural rights guaranteed by the European Convention on Human Rights”, in F. Matscher and H. Petzold (eds.), Protecting Human Rights: The European Dimension, Studies in honour of Gérard J. Wiarda – Protection des droits de l’homme: la dimension européenne, Mélanges en l’honneur de Gérard J. Wiarda (Köln, Carl Heymanns Verlag kg 1990), p. 603. 268 Loc. cit. 269 Loc. cit. 270 See further amongst many others: ECtHR (Judgment) Ion Bălăşoiu v. Romania, no. 70555/10, 17 February 2015, paras. 101–102; ECtHR (Judgment) Etxebarria Caballero v. Spain, no. 74016/12, 7 October 2014.

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dissenting judges, saw a violation of Article 3 echr exactly because of this, namely the absence of an effective investigation into the event.271 The same approach was taken, for instance, in the case of Mehdiyev v. Azerbaijan where, after having found a violation of the procedural limb of Article 3 echr in connection with an allegation of police ill-treatment, the ECtHR found no violation of the substantive limb of that provision stressing that “its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention on the part of State authorities derives to a large extent from the failure of the domestic authorities to carry out an effective investigation at the relevant time”.272 On the other hand, in some other cases, the failure of the competent authorities to conduct an effective investigation, which prevented the elucidation of arguable allegations of the breach of an echr right, led the ECtHR to find a breach of the procedural and consequently substantive aspect of the right.273 The approach in which the ECtHR decides not to detach the procedural obligation from the substantive aspect of the right raises conceptual issues which an author describes as schizophrenic.274 In order to avoid this, Tulkens cautions that the procedural obligation should not substitute the obligation for the ECtHR to examine the substantive aspects of the alleged human rights violations by relying only on the procedural aspects of the case. She considers that the procedural control should be complementary to the substantive aspects, which, among other things, poses the question as to whether it is necessary to examine the procedural aspect once a violation of the substantive aspect has been established.275 Eva Brems has voiced similar criticism pointing

271 See the dissenting opinion of judges I. Cabral Barreto, V. Zagrebelsky and D. Popović in Ersoy and Arslan v. Turkey, no. 16087/03, 28 April 2009, paras. 19–25. 272 ECtHR (Judgment) Mehdiyev v. Azerbaijan, no. 59075/09, 18 June 2015, para. 75 and the dissenting opinion of Judge L.-A. Sicilianos. See further: ECtHR (Judgment) Alpar v. Turkey, no. 22643/07, 26 January 2016, para. 42. 273 ECtHR (Judgment) Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, 30 September 2014, para. 78; ECtHR (Judgment) Mafalani v. Croatia, no. 32325/13, 9 September 2015, para. 126; ECtHR (Judgment) Cangöz and Others v. Turkey, no. 7469/06, 26 April 2016,  paras. 138–139, 148–149; ECtHR (Judgment) Seagal v. Cyprus, no. 50756/13, 26 April 2016, parat 274 H. Tran, “’Schizophrénie’ de la Cour européenne des droits de l’homme en matière d’obligations procédurales (quelques considérations en marge des arrêts Silih c. Slovénie du 9 avril 2009, et Ersoy et Aslan c. Turquie du 28 avril 2009)”, 9(29) L’Europe des Libertés (2009), p. 22. 275 F. Tulkens, “Le droit à la vie et le champ des obligations des états dans la jurisprudence récente de la Cour européenne des droits de l’homme”, in P. Amselek (ed.), Libertés,

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out that detaching the procedural requirement so as to replace the substantive scrutiny essentially weakens substantive human rights protection.276 Dubout also sees the procedural and substantive aspects of a right as two complementary guarantees. He makes a distinction between them by observing the substantive aspect as the obligation of results and the procedural aspect as the obligation of means. In order to find a substantive violation of a right it is necessary to establish a causal link between the action or inaction of the state and the infringement of the right. It is, however, possible to find a procedural violation by identifying failures in the process which have led to the absence of prevention, sanctioning and an effective deterrence.277 Nevertheless, Dubout considers that in the hierarchy of the two aspects, the procedural obligation comes secondary only in cases where it is impossible to impute the infringement of the right to the state. When this approach is not observed there is the risk of a superfluous finding of two violations of the same right.278 In the context of the present study, the arguments related to the above discussion should be somewhat reorganised so as to focus on the question whether the finding of a substantive violation of a right could coexist with the finding of a violation of the procedural aspect of the same right on account of failures in the conduct of an investigation and prosecution, and, if it could, what should be examined first. Before examining the implications of this discussion in practical reasoning we should note that criminal procedure, conceived as a framework for the protection of human rights, has an autonomous or independent value and at the same time an instrumental value.279 The former concerns the duty of the national authorities to provide an adequate procedural response to the occurrence of a human rights offence, which is “essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.”280 The latter is aimed at the vindication of the infringed substantive right.281 Whereas one could argue that the instrumental value of a procedural response was the primarily motive for advancing the concept of the procedural Justice, Tolérance : Mélanges en hommage au Doyen Gérard Cohen-Jonhathan, Volume ii (Brussels, Bruylant 2004), p. 1626. 276 Brems, supra n. 2.1, pp. 138–139. 277 Dubout, supra n. 2.4, p. 415. 278 Loc. cit. 279 See further: Allan, supra n. 2.16, pp. 497–515. 280 ECtHR (Judgment) Mocanu and Others v. Romania [gc], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014, para. 323. 281 ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 116.

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protection,282 the case-law of international human rights courts, particularly the ECtHR, as we shall see later in this study, places a particular emphasis on the autonomous value of the procedure, which is, after all, a requirement of means not of results.283 In any case, even if we were to argue that there is a justificational priority of a just outcome (primacy of substance over procedure),284 we are obliged to accept that such an outcome is guaranteed only by a just procedure; a procedure that meets all the requirements of human rights law. However, the requirements of a just outcome (substance) and a just procedure are not invariants but rather interrelated matters, or as advanced in an illustrious statement: “[e]ach implies different variables depending upon the particular problem for which it is used.”285 As it was discussed earlier, the procedural obligation can pursue three different aims in human rights law: (1) putting into effect the obligation of ­substantive protection, (2) remedying the existing breaches of rights, and (3) reinforcing respect for the substantive right. In each case, this procedural ­obligation arises as an ex post requirement following the infringement of a right sanctioned through the norms of (substantive) criminal law. It is thus a criminal-law mechanism of a procedural nature that comes into effect only after there has been a criminal breach of a right in order to identify and, if ­appropriate, punish those responsible. Whereas Strasser’s proposal to reserve the examination of substantive rights pending the outcome of the procedural analysis could appear appropriate to ex ante procedural requirements (which could, in some instances, be criminal investigation and prosecution)286 it is obviously inapt to the procedural requirement of criminal investigation and prosecution as an ex post procedural obligation. In the case where the adequate procedure is conceived as an ex ante issue, the procedural obligation serves to justify “whether the decisionmaking process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual,”287 or, in the context of ex ante application of criminal law mechanisms: whether the states 282 Brems, supra n. 2.15, p. 159. 283 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, para. 71. 284 See for the discussion on justificational priority of substance/procedure: O. Malcai and R. Levine-Schnur, “Which Came First, the Procedure or the Substance? Justificational Priority and the Substance – Procedure Distinction”, 34(1) Oxford Journal of Legal Studies (2014), pp. 1–19. 285 Solum, supra n. 2.28, pp. 3 and 30. 286 ECtHR (Judgment) T.M. and C.M. v. the Republic of Moldova, no. 26608/11, 28 January 2014, paras. 59–61. 287 ECtHR (Judgment) Connors v. the United Kingdom, no. 66746/01, 27 May 2004, para. 83.

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secured “measures designed to ensure that individuals within their jurisdiction are not subjected [to infringements of their rights].”288 However, these issues are distinct from the aim of identifying and punishing those responsible for breaches of human rights; which are naturally reactive or ex post actions. It follows that the substantive protection in human rights law and the ex post procedural obligation cannot be put in such a correlation in which the substantive analysis would have to be reserved pending the outcome of the procedural examination. In other words, if the state has unjustifiably deprived an individual of his life and thus breached the substantive obligation of respect for his life under Article 2 echr, the ex post investigation into the circumstances of the case, which aims at identifying and punishing those responsible for the deprivation of life, could not justify the act of deprivation itself, although it could, in some instances, deprive the individual of his or her victim status. It therefore appears that the more appropriate interrogation in this context is the one of Tulkens and Dubout as to the necessity to examine both aspects (substantive and procedural) of the same right, which also raises the question what should be examined first. Coming back to the example of the right to life under Article 2 echr and recalling that the procedural obligation in human rights law is a separate and autonomous duty,289 we come to the conclusion that in principle there is no obstacle to examining both aspects of the same right. Conceptually, this can be explained by the different aims pursued by the two levels of protection. In the context of the substantive analysis the question to be answered is whether the state unjustifiably deprived or failed to protect the life of an individual, while under the procedural aspect the question will be whether the state failed to identify and punish those responsible for the deprivation of life at issue.290 It is, however, expedient to examine the procedural aspect first for two reasons. Firstly, the analysis of the procedural steps taken to elucidate the circumstances of the case creates a consequential benefit for the international human rights adjudication in assisting the process of establishing the facts.291 Secondly, the effective and appropriate criminal investigation, combined with 288 ECtHR (Judgment) Opuz v. Turkey, no. 33401/02, 9 June 2009, para. 159. 289 ECtHR (Judgment) Janowiec and Others v. Russia [gc], nos. 55598/07 and 29520/09, 21 October 2013, para. 131. 290 See amongst many others: ECtHR (Judgment) Makbule Kaymaz and Others v. Turkey, no. 651/10, 25 February 2014, paras. 132 and 146. 291 Although the possibility that this could in itself serve to conceptually underline the concept of procedural obligation should be rejected, its undisputed (but only consequential) practical benefit should not be undermined.

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the adequate compensation, could vindicate the substantive right and thus deprive an individual of his or her victim status for the alleged breach of the substantive right.292 An issue closely related to the search for conceptualisation of the substantive and procedural aspects of human rights is the approach to the procedural obligation as an adjudicative tool in international human rights law. According to this approach, the requirement of effectiveness of substantive rights stipulates the need for “jurisprudential improvements” to the benefit of victims of human rights infringements. Even in the absence of concordant evidence of a substantive violation of human rights the victims must have a mechanism to secure observance of their fundamental rights.293 For instance, in H.M. v. ­Turkey, concerning allegations of arbitrary and unlawful search of the applicant’s flat under Article 8 echr (right to respect for private life), the ECtHR noted that there was not sufficient evidence that the search had been carried out by the state agents but also that there had been no effective investigation allowing it to obtain all the relevant information. On this account, the ECtHR found a violation of the procedural aspect of Article 8 echr.294 While it is true that the procedural obligation could be observed from this perspective, there is a conceptual objection to such a proposal as it is insubstantial in justifying the nature and purpose of the procedural obligation. In other words, observing the procedural obligation merely as an adjudicative tool would mean that a human rights guarantee exists in order to facilitate international human rights adjudication, which would turn such adjudication into an end in itself. Put differently, would that by analogy imply that paragraph 4 of Article 5 echr (right to liberty and security) requires a judicial control of the lawfulness of pre-trial detention not in order to enforce the effectiveness of the right not to be deprived of liberty unlawfully and arbitrarily, guaranteed under paragraph 1 of that provision, but in order to secure evidence for a potential case before the ECtHR? Furthermore, there are two provisions of the echr directly dealing with the problem of states’ cooperation with the ECtHR in the cases brought before it. These are Article 34 (individual applications) and Article 38 (examination of cases) echr,295 which could be an object of

292 ECtHR (Judgment) Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, para 56. 293 Rabiller, supra n. 2.249, pp. 7 and 16. 294 ECtHR (Judgment) H.M. v. Turkey, no. 34494/97, 8 August 2006, paras. 27–30. 295 Dubout, supra n. 2.4, p. 416.

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separate violations296 and which have never been relied upon by the ECtHR in conceiving the procedural obligation. 5.2 Procedural Obligation and the Right to a Remedy The predominance of doctrinal doubts concerning the concept of procedural obligation in human rights law relates to the above-identified second aspect of the problem; the relation between the procedural obligation and the right to a remedy. These doubts could be observed through the complexity of and, as some authors have suggested, the confusion297 which has arisen in the ECtHR’s case-law. In its first cases on the question of obligation to conduct an effective investigation, the ECtHR deployed three possible approaches. In the first approach, the same facts concerning the allegations of inadequate investigation were found to have led to a violation of the procedural aspect of the substantive provision (Article 3 echr) and at the same time a violation of the right to a remedy (Article 13 echr).298 The second approach was focused on the right to a remedy and thus the facts concerning the allegations of inadequate investigation were found to have to a violation of the right to a remedy, whereas the procedural limb of the substantive provision was considered redundant.299 And in the third approach, the ECtHR examined the inadequacy of the investigation under the procedural limb of the substantive provision and considered the issue of the right to a remedy to be thereby consumed.300 However, as already observed above in the context of remedies, the developments in the ECtHR case-law are now sufficiently clear to the effect that the obligation of an effective investigation and prosecution as a remedy is inextricably linked to the question of whether the victim was able to obtain compensation. The examination of the circumstances of inadequate investigation under the provision guaranteeing the right to a remedy, together with the procedural aspect of the right, is possible only when failures in the investigation prevented the victim from obtaining compensation for loss or injury 296 ECtHR (Judgment) Nizomkhon Dzhurayev v. Russia, no. 31890/11, 3 October 2013, paras. 159 and 165. 297 M. Birker, “Le violet procédural de l’article 3 et ses rapports énigmatiques avec le droit à un recours effectif : CourEDH, Khachiev et Akaïeva c. Russie, 24 février 2005”, 5(17) L’Europe des Libertés (2005), p. 19. 298 ECtHR (Judgment) Assenov and Others v. Bulgaria, no. 24760/94, 28 October 1998, paras. 106 and 118. 299 ECtHR (Judgment) İhan v. Turkey [gc], no. 22277/93, 27 June 2000, paras. 89–93. 300 ECtHR (Judgment) Bekos and Koutropoulos v. Greece, no. 15250/02, 13 December 2005, para. 57.

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sustained.301 The doctrinal discussions should therefore be read as indicating a lack of a clear and comprehensible conceptual framework rather than as dealing with the practical implications of the right to a remedy and the procedural obligation.302 A conceptual framework in which the procedural obligation implied in the substantive provision of the echr coexists with the procedural aspect of the right to a remedy was elaborately conceived by Michel Hottelier who considers these two guarantees as complementary rather than exclusive. This is primarily because the purpose of the procedural obligation is to reinforce the substantive right at issue whereas the right to a remedy is a requirement to provide at the domestic level recourse capable of redressing the alleged violations of human rights, which could notably be substantive or procedural.303 Although complementary, the procedural obligation implied in the substantive provision and the right to a remedy could have a hierarchal relationship. On the one hand, the former could exclude the applicability of the latter. This would be the case in which the same facts could be at the same time subsumed under the two provisions. By giving primacy to the procedural obligation implied in the substantive human rights norm, the right at issue would be, albeit only symbolically, further reinforced.304 On the other hand, as submitted by Dubout, the lex specialis – lex generalis relationship requires that, in principle, the right to a remedy should have primacy over the procedural obligation implied under the substantive provision. The latter would thus be applicable only where the absence of an effective investigation prevents the finding of a violation of the substantive provision or where an applicant failed to invoke his right to a remedy.305 Dubout’s conclusion heavily relies on the concept of lex specialis – lex g­ eneralis relationship considering that the provision of Article 13 echr (right to an effective remedy) provides for a procedural norm which in matters of a 301 See supra 2.3.3. 302 Rabiller, supra n. 2.249, pp. 11–15; J.F. Renucci, Droits européen des droits de l’homme, 4e édition (Paris, Lextenso 2010), p. 76; J.-F. Akandji-Kombe, “L’obligation positive d’enquête sur le terrain de l’article 3 cedh”, in C.-A. Chassin (ed.), La portée de l’article 3 de la Convention européenne des droits de l’homme (Brussels, Bruylant 2006), p. 140. 303 M. Hottelier, “La nécessaire complémentarité des droits matériels et des garanties de procédure (Cour européenne des droits de l’homme, 8 aout 2006, H.M. c. Turquie)”, 69 ­Revue trimestrielle des droits de l’homme (2007), pp. 580–582. 304 Dubout, supra n. 2.4, p. 417. 305 Ibid., pp. 418–419.

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procedural nature should have primacy over the substantive norm. He is also concerned with the search for an effective conceptual framework.306 To begin with the lex specialis – lex generalis relationship; it appears somewhat odd to consider an issue raised under an existing aspect of a particular right to be a general provision, and another provision which is by its nature general and complementary, such as the right to a remedy, to be specific. As observed by Dubout himself,307 Article 13 echr is subsidiary to the specific procedural guarantee of Article 5 echr (right to liberty and security) provided in paragraph 4 of that provision,308 just as it is subsidiary to the right to access to a court, implied in Article 6 § 1 echr (right to a fair trial).309 If there is no disagreement over whether the procedural obligation implied in the substantive norm of, for example, right to life under Article 2 echr exists, then conceptually there is no difference between this procedural requirement of Article 2 echr and the procedural requirement provided in paragraph 4 of the substantive norm of Article 5 echr. Accordingly, just as Article 5 § 4 echr is lex specialis to the right to a remedy under Article 13 echr, the procedural aspect of Article 2 is also lex specialis to the general requirement for an effective remedy provided in Article 13 echr. Furthermore, there is an additional aspect of criminal-law remedies in human rights law which does not fit into Dubout’s analysis. As already observed in the earlier analysis relevant to conceiving the procedural obligation in the context of the right to a remedy in human rights law, Article 13 echr implies a broader concept than the obligation to conduct an effective investigation and prosecution because it consists of an additional vindicating element: payment of compensation to the victim where appropriate.310 There is therefore a strong argument for conceiving the right to a remedy as a complementary additional guarantee which should come into play only when the issue of adequate compensation arises.311 Otherwise, its aspect of

306 Ibid., p. 419. 307 Loc. cit. 308 ECtHR (Judgment) James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012, para. 229. 309 ECtHR (Judgment) Loncke v. Belgium, no. 20656/03, 25 September 2007, para. 53. 310 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 255. Note that in his analysis Dubout relies on a somewhat outdated case-law in İhan v. Turkey, which itself seems to neglect this aspect of the right to a remedy (see ECtHR (Judgment) İhan v. Turkey [gc], no. 22277/93, 27 June 2000, paras. 91–93). 311 ECtHR (Judgment) Reynolds v. the United Kingdom, no. 2694/08, 13 March 2012.

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effective investigation is consumed under the procedural obligation implied in the structure of a substantive right.312 5.3 Procedural Obligation and the Concept of Positive Obligations The third above-noted aspect of the problem of conceptualising the procedural obligation in human rights law relates to the confusion between the procedural obligation implied in a substantive human rights norm and the procedural obligation implied in the structure of positive obligations.313 A common feature of these two concepts of procedural obligation is that in reality both can be viewed as a requirement of positive action of a particular content imposed on the states parties to a human rights treaty such as the echr. Admittedly, the problem could be one of a terminological nature only, but the requirement for a workable conceptual framework mandates further clarification. This conceptual issue appears to be related to the same or similar theoretical basis for the procedural obligation and the positive obligations. In general, the theoretical conceptions through which the concept of positive obligations developed include: (1) a commitment of the states to secure human rights implied in the general provision of international human rights treaties;314 (2) the right to an effective remedy in human rights law;315 (3) the prohibition of the abuse of rights;316 (4) various interpretative concepts and clauses, such as the requirement of effectiveness,317 expressions “everyone has the right to” or “no one shall”,318 or the method of evolutive interpretation of human rights treaties;319 and (5) various other considerations such as a liberal, social and multidimensional understanding of fundamental rights.320 As the earlier analysis has shown, at least three of these conceptions allow the procedural 312 ECtHR (Judgment) Dimov and Others v. Bulgaria, no. 30086/05, 6 November 2012, para. 89; ECtHR (Judgment) Perevedentsevy v. Russia, no. 39583/05, 24 April 2014, para. 126. 313 M. Pitkänen, “Fair and Balanced Positive Obligations – Do They Exist?”, 5 European Human Rights Law Review (2012), pp. 539–540. 314 Xenos, supra n. 2.37, p. 10; M. Beaulieu-Lussier, C. Bouvier, C. Rozon and P. Tousignant, Article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: A Solution to the Non-Application of the Convention by the Federation of Russia (Université du Québec à Montréal, ciddhu 2010), pp. 7–10. 315 Leach, supra n. 2.42, p. 124. 316 See further: Xenos, supra n. 2.37, p. 21. 317 J.G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester, Manchester University Press 1993), p. 106. 318 Xenos, supra n. 2.37, p. 448. 319 Spielmann, supra n. 2.47, p. 86. 320 Dröge, supra n. 2.70, p. 196.

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obligation to be conceived directly without the intermediary concept of positive obligations. In general, the normative basis for deriving the procedural obligation from a human rights norm is provided in the general clause of Article 1 echr read in conjunction with the substantive norm at issue.321 Such conceptual framework is also closely related to the requirement of effectiveness and meaningfulness of rights.322 The general clause under Article 1 echr thus serves to justify several practically related, but theoretically distinct, concepts such as the positive obligation of protection, the procedural obligation of an effective investigation and prosecution, and the concept of horizontal effect of the echr.323 Such a general clause in a human rights treaty is essentially a norm which from the perspective of the theory of international law requires the states to comply with their Convention obligations in good faith making the human rights effective through the positive actions of prevention and repression of human rights infringements.324 For instance, in interpreting Article 1 achr, the IACtHR explained that this provision implies a double obligation imposed upon the states. The first obligation is to respect the rights and freedoms, which consequently limits the state powers, and the second is to ensure free and full exercise of rights, which implies that “the States must prevent, investigate and punish any violation of the rights recognised by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damage resulting from the violation.”325 In practical terms, when deriving the procedural obligation directly from the substantive provision with reference to Article 1 echr, the ECtHR’s reasoning is conceptualised in the following manner: [W]here an individual raises an arguable claim that he has been seriously ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and

321 Chevalier-Watts, supra n. 1.56, p. 701. 322 Aolain, supra n. 1.99, p. 36. 323 Madelaine, supra n. 2.265, p. 153. 324 I. Panoussis, “L’obligation générale de protection des droits de l’homme dans la jurisprudence des organes internationaux”, 70 Revue trimestrielle des droits de l’homme (2007), pp. 431 and 447. 325 IACtHR (Judgment) Godínez Cruz v. Honduras, 20 January 1989, paras. 170–175.

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freedoms defined in… [the] Convention’, requires by implication that there should be an effective official investigation…326 On the other hand, when a case raises the issue of positive obligations, then in principle327 the procedural obligation is not derived directly from the substantive norm but through two steps in the reduction of the implied obligations  to the level of procedural requirement. In the first step, the general ­structure of positive obligations is constructed, in which there is a requirement to “put in place effective criminal-law provisions to deter commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions;” and in the second, this structure is further reduced to the level of a procedural action.328 This is the model of double direction of positive obligations.329 On the one hand, the positive obligations comprise the obligation to take measures to prevent danger to a right; and on the other hand to (in some instances) inform, suppress and punish those responsible for infringing the right. The former aspect can be denoted as substantive positive obligations and the latter as procedural positive obligations.330 It follows from this scheme that the mechanisms of criminal investigation and prosecution, put in place with a view of securing punishment of those responsible for breaches of substantive provisions, are ex post procedural positive obligations. At the same time, when the same mechanisms are conceived out of the scheme of the concept of positive obligations through the direct reduction from the substantive norm, no issue should necessarily arise as regards the substantive positive obligations. This scheme should not be read as implying that the procedural positive obligation is some specific autonomous model of positive obligations,331 but rather as emphasising that in practical reasoning there is a requirement to identify whether the procedural obligation comes into operation with regard to the direct reduction or reduction through the concept of positive obligations. 326 ECtHR (Judgment) Velev v. Bulgaria, no. 43531/08, 16 April 2013, para. 49. 327 ECtHR (Judgment) Valiuliené v. Lithuania, no. 33234/07, 26 March 2013, paras. 74–77; ­ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, paras. 149–153. 328 ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, paras. 70–71; ECtHR (Judgment) Valiuliené v. Lithuania, no. 33234/07, 26 March 2013, paras. 74–77; ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, paras. 149–153. 329 Tulkens, supra n. 2.275, p. 1611. 330 Loc. cit. 331 Dröge, supra n. 2.70, p. 383.

chapter 3

Obligation to Investigate and Prosecute Human Rights Offences in International Human Rights Law 1

Obligation to Investigate and Prosecute Human Rights Offences in the Soft Law Instruments

1.1 Obligation to Investigate and Prosecute in the un Instruments 1.1.1 un Declaration on Torture The un Declaration on Torture1 was adopted by the General Assembly on the recommendation of the Fifth un Congress on the Prevention of Crime and the Treatment of Offenders held at Geneva between 1 and 12 September 1975.2 This document, providing for practicable solutions to the questions of penalisation of human rights offences of torture and other forms of ill-treatment, inspired the drafting of the cat,3 incorporating the pertinent principles in a further stronger model of international commitment.4 The un Declaration on Torture denotes any act of torture or other cruel, inhuman or degrading treatment or punishment (Article 1)5 as an “offence to human dignity” (Article 2), making it impermissible for a state to tolerate such acts, even in the most extreme circumstances such as war or other public unrest and emergency (Article 3). However, the un Declaration on Torture is rather limited in scope covering only torture or ill-treatment “by or at the instigation of a public official” (Article 1).

1 Declaration on the Protection of All Persons from Being Subjected to Torture and Other ­Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/3452, 9 December 1975. 2 un Department of Economic and Social Affairs, Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva 1–12 September 1975, A/CONF 56/10. 3 Preamble to the cat. 4 Articles 12 and 13 cat. 5 Under Article 1(1) and (2), torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons.” Torture also constitutes “an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.” © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_004

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In general, the un Declaration on Torture envisages two models of protection: (1) prevention (Articles 4–7); and (2) investigation and, where appropriate, punishment (Articles 8–10). The preventive actions include various ­effective measures to prevent torture and other forms of ill-treatment, such as, for example, the necessary training of law enforcement personnel. In the case of torture, the obligation also extends to the requirement of penalisation. The procedural protection through investigation and punishment is secured through two models. Which of the two is to be applied depends on the severity of maltreatment. First is the possibility of a right to complain which must be open to any person alleging torture or any other form of ill-treatment. Such a complaint must be impartially examined by the competent domestic authorities. The other model is an ex officio investigation, which is to be applied whenever there is a reasonable ground to believe that an act of torture has been committed. Such an investigation must be prompt and impartial. The investigation instituted upon the victims’ complaint or ex officio must lead to appropriate proceedings against those responsible whenever it establishes that an act of torture, or another form of ill-treatment, has been committed. However, in the case of torture the only appropriate procedural ­response is through criminal prosecution, whereas in the case of other forms of ill-treatment, criminal, disciplinary or other appropriate proceedings could be envisaged. 1.1.2 Basic Principles of Justice for Victims The Basic principles of justice for victims (hereinafter: “the Principles”)6 have been adopted on the conviction that victims of crime deserve compassion and respect, entitling them to a swift redress of their suffering, by giving them access to the mechanisms of criminal justice system, reparation and relevant services adapted to assist their recovery.7 The Principles are essentially recommendations for the appropriate measures to be taken at the international, regional and national level in securing victims’ rights, such as improving their access to justice.8 The Principles are primarily concerned with the victims of offences under national criminal law.9 They distinguish between victimisation resulting from 6 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34, 29 November 1985. 7 United Nations Office for Drug Control and Crime Prevention (unodccp), Handbook on Justice for Victims: On the use and application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York, unodccp 1999), p. iv. 8 Loc. cit. 9 Bassiouni, supra n. 1.62, p. 216.

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two categories of offences. Firstly, offences committed by private individuals, and secondly, offences resulting from the abuse of power by the state.10 This distinction, however, as observed by Naomi Roht-Arriaza, has no effective bearing on the difference between common (ordinary) crime and grave breaches of human rights.11 In the resolution by which it unanimously adopted the Principles, the un General Assembly called upon the member states to penalise human rights offences,12 and to secure mechanisms of the effective respect for human rights by investigation and prosecution of those responsible for the commission of crimes.13 The latter obligation of effective investigation and prosecution, which is essentially procedural in nature, was further explained in a document on the implementation of the Principles as implying the requirement of “effective restraints on the exercise of public and economic power in order to minimize abuses,” which includes “the organization of specialized, multidisciplinary teams to aid in the detection, investigation and sanctioning of such abuses.”14 Special emphasis under the Principles was also placed on the conduct of prompt and impartial investigations into all deaths or serious physical or mental injuries caused by the state agents or sustained in a public institution, such as a hospital, or another institution for the deprivation of liberty.15 The Principles also establish a range of participatory rights of victims in the criminal proceedings.16 These considerations are based on the requirement of

10 Ibid., p. 247. 11 Roht-Arriaza, supra n. 1.57, p. 498. 12 In particular, it noted that the states should endeavour “to enact and enforce legislation proscribing acts that violate internationally recognized norms relating to human rights, corporate conduct, and other abuses of power” (Section 4c). 13 In the relevant part, the resolution declares that the states should undertake “to establish and strengthen the means of detecting, prosecuting and sentencing those guilty of crimes” (Section 4d). 14 United Nations Office for Drug Control and Crime Prevention (unodccp), Guide for Policy Makers: On the Implementation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (New York, unodccp 1999), p. 9. 15 Loc. cit. 16 Sections 4–7 of the Annex to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; (“Annex”) Specifically, these participatory rights include ­(Section 6 of the Annex): “(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

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­compassion and respect for the victim’s dignity, which mandate access to justice and prompt redress.17 One of the implications of these participatory rights, particularly relevant to this study, is the relation between the public prosecutor and the victim in the decision-making process. This relation was conceived by the un Office for Drug Control and Crime Prevention in the following manner: … The attempt of some prosecutors to dispose of cases quickly may come into direct conflict with the needs and desires of the individual victims who want their perpetrator prosecuted to the full extent of the law. However, prosecutors should keep in mind that it is the victim who is directly harmed by the crime. Victims have a valid interest in the prosecution of the case and should be involved at all stages of the proceedings. In addition, the prosecution will profit generally from the improved cooperation of victims who feel that they have been protected, assisted and properly informed.18 The Principles further envisage various social rights of the victims in the context of criminal proceedings such as material, medical, psychological and social assistance.19 They also envisage, in the context of the requirement for an effective remedy,20 prompt restitution and compensation of the victims.21 This, however, cannot be dissociated from the criminal law mechanisms of o­ fficial and effective investigation and prosecution that form a basis for a decision on restitution,22 and thus represent an indispensable element in the overall assessment. (b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, w ­ ithout prejudice to the accused and consistent with the relevant national criminal justice system; (c) Providing proper assistance to victims throughout the legal process; (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.” 17 Section 4 of the Annex. 18 unodccp, supra n. 3.7, p. 66. 19 Sections 14–17 and 19 of the Annex. 20 Bassiouni, supra n. 1.64, pp. 216–217. 21 Sections 8–13 and 19 of the Annex. 22 unodccp, supra n. 3.7, p. 26.

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1.1.3 Declaration on Enforced Disappearance The Declaration on Enforced Disappearance (hereinafter: “the Declaration”)23 is a “body of principles for all States,” emerging from the demanding public pressure,24 designed to highlight and condemn all practices related to enforced disappearances, which have been characterised as “a grave and flagrant violation of human rights” and rules of international law (Article 1). This is the first international document to state that enforced disappearance is “an offence to human dignity” which conceptualises further requirements of penalisation and prosecution of such conduct through the mechanisms of criminal law.25 Thereby the Declaration complied with the affirmations of various human rights groups that had consistently argued in favour of two elements which an effective international mechanism on enforced disappearances should contain. The first element is penalisation of the conduct of enforced disappearances (substantive aspect), and second is effective mechanisms for the prevention, investigation and punishment of those responsible for such acts, including the victims’ possibility of obtaining adequate compensation.26 The Declaration requires the states to incorporate all acts of enforced disappearances as offences in their criminal law and to provide appropriate penalties for the punishment of such offences (Article 4). One of the features of the requirement for penalisation of the acts of enforced disappearances was their consideration as a form of crime against humanity,27 which was eventually incorporated in the Rome Statute28 of the icc.29 Similarly, some authors have argued that there is a consensus at the international level that the acts of enforced disappearances should also be treated as acts of torture, which would as 23 24

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26 27 28 29

Declaration on the Protection of All Persons from Enforced Disappearance, E/CN.4/ RES/1992/29, 28 February 1992. M. Lippman, “Disappearances: Towards a Declaration on the Prevention and Punishment of the Crime of Enforced or Involuntary Disappearances”, 4 Connecticut Journal of International Law (1988), p. 121. I. Pervou, “The Convention for the Protection of all Persons from Enforced Disappearance: Moving Human Rights Protection Ahead”, 5(1) European Journal of Legal Studies (2012), p. 130. R. Bordy and F. González, “Nunca Más: An Analysis of International Instruments on ‘Disappearances’”, 19 Human Rights Quarterly (1997), p. 376. Preamble to the Declaration. Article 7(1)(i) of the Rome Statute. K. Anderson, “How Effective is the International Convention for the Protection of All Persons from Enforced Disappearance Likely to be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance?” 7(2) Melbourne Journal of International Law (2006), p. 254.

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a consequence entail even further effective mechanisms of legal protection.30 In addition, provided that it complies with the principles of international law, states should provide for a civil liability rendering the perpetrators and the state or state authorities which organise, acquiesce in or tolerate such disappearances responsible.31 The Declaration also envisages “the right to complain to a competent and independent State authority and to have that complaint promptly, thoroughly and impartially investigated by that authority” for any person having knowledge or a legitimate interest in pursuing a case of an enforced disappearance (Article 13–1). This right should be effective even without any formal complaint and no measure can be taken to curtail or impede the investigation. The relevant procedure set in motion to investigate and prosecute acts of enforced disappearances must be effective in terms of the necessary powers and resources allowing the competent authority to conduct all relevant procedural actions (Article 13–2). As for the specific procedural requirements, the Declaration provides for permissive universal jurisdiction, which does not mandate for the assertion of universal jurisdiction but requires that the states should take all measures to bring those suspected of acts of enforced disappearances to justice when they are within their jurisdiction or under their control.32 The trials should be held before ordinary civilian courts and not military or other special tribunals (Articles 14 and 16–2). Privileges, immunities or other special exemptions cannot be successfully invoked at the trials nor should the suspect benefit from any special amnesty law or similar measures that might have the effect of exempting him or her from any criminal proceedings or sanction. Pardons should also be examined in view of the “extreme seriousness of acts of enforced disappearance” (Articles 16–3 and 18). Specific provisions are provided with regard to the statute of limitations ­(Article 17). Firstly, enforced disappearances must be considered as continuing offences as long as all relevant circumstances and facts remain unclear. Secondly, the running of the statutory limitation periods shall be suspended as long as there are no effective remedies at the domestic level, within the meaning of Article 2 iccpr. Thirdly, where the statute of limitations exists, they must be substantial and commensurate with the extreme seriousness of the offence. Effectively, as rightly observed by the commentators, “these three p ­ rovisions,

30 31 32

Ibid., p. 270. Article 5 of the Declaration. Bordy and González, supra n. 3.26, p. 391.

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taken together, make it extremely unlikely that the statute of ­limitations will prevent the perpetrator of disappearances from being brought to trial.”33 1.1.4 Principles on the Investigation of Summary Executions The Principles on the Investigation of Summary Executions (hereinafter: “the Investigation Principles”)34 were adopted as a result of an extensive work of various un bodies and experts and other international organisations and nongovernmental sector on the problem of extra-legal, arbitrary and summary executions.35 They were supplemented by the Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (hereinafter: “the Investigation Manual”)36 providing for detailed protocols on investigation and autopsy in cases of suspected summary executions. The Investigation Principles, viewed from the perspective of contemporary international human rights law, proceduralise the substantive protection of the right to life provided under Article 3 of the Universal Declaration of Human Rights and Article 6 iccpr.37 Protection under the Investigation Principles operates through prevention and investigation of any report or suspicion of arbitrary or summary executions. Prevention is primarily envisaged through the penalisation of practices of arbitrary and summary executions. States are obliged to recognise as offences under their criminal laws any such instances and to provide punishment by appropriate penalties that are commensurate with the seriousness of the offence.38 This obligation must be accompanied by effective control and supervision of all institutions for deprivation of liberty and all state agents authorised to use weapons,39 as well as with judicial or other means that must be made 33 34

35

36 37 38 39

Ibid., p. 389. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, no. 1989/65 of 24 May 1989; adopted by the un General Assembly by resolution 44/162 of 15 December 1989. These activities resulted in a number of un General Assembly resolutions expressing concern and calling for action on the problem of summary executions. See further: un General Assembly resolution 33/173 of 20 December 1978; resolution 35/172 of 15 December 1980; resolution 36/22 of 9 November 1981; resolution 37/182 of 17 December 1982; resolution 38/96 of 16 December 1983; resolution 39/110 of 14 December 1984; resolution 40/143 of 13 December 1985; resolution 41/144 of 4 December 1986 (see also Economic and Social Council, E/CN.4/1986/21); resolution 42/141 of 7 December 1987; and resolution 43/151 of 8 December 1988. un doc. no. E/ST/CSDHA/.12 (1991). Preamble to the Investigation Principles. Para. 1 of the Investigation Principles. Ibid., paras. 2, 3, 6, 7 and 8.

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accessible to those in danger of arbitrary or summary execution,40 including such possible threat in the extradition context.41 Protection through investigation encompasses necessary investigative measures and, where appropriate, prosecution of those responsible, with the effective participation, as well as redress of the victims’ families. The obligation to conduct an investigation exists in case of a suspicion of extra-legal, arbitrary and summary execution, including complaints and indications of any unnatural death in those circumstances.42 According to the Investigation Manual the investigation must aim to: (1) identify the victim; (2) recover and preserve evidentiary material related to the death in order to aid in any potential prosecution of those responsible; (3) identify possible witnesses and obtain statements from them concerning the death; (4) determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; (5) distinguish between natural death, accidental death, suicide and homicide; (6) identify and apprehend the person(s) involved in the death; (7) bring the suspected perpetrator before a competent court established by law.43 The investigation must be: (1) thorough, including in particular an adequate autopsy,44 collection and analysis of all physical and documentary evidence and statements from witnesses; (2) prompt; (3) impartial; (4) official and (5) its results must be open to the public.45 It must also clearly distinguish between natural death, accidental death, suicide and homicide.46

40 41 42 43 44

45

46

Ibid., para. 4. Ibid., para. 5. Ibid., para. 9. Investigation Manual, pp. 17–18. The Investigation Principles, in paras. 12–14 (supplemented with the Investigation Manual, pp. 27–45), provide for detailed rules and guidelines on autopsy reports. In particular, the body of the deceased person cannot be disposed of until an adequate autopsy by an independent and impartial physician, preferably an expert in forensic pathology, is conducted. He or she must have access to all relevant investigative data, to the crime scene and if necessary can request an exhumation of the remains. The autopsy must, at a minimum, attempt to establish the identity of the deceased, the cause and manner of death and the time and place of death. The autopsy report must describe all injuries to the deceased including any evidence of torture, and must be accompanied with relevant materials such as colour photos. The Investigation Manual characterises competence, thoroughness, promptness and impartiality of the investigation as “[t]he fundamental principles of any viable investigation into the causes of death” (p.17). Paras. 9 and 17 of the Investigation Principles.

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The investigative authority is the competent domestic authority established under national laws on criminal procedure47 which must have at its disposal all the necessary technical, organisational and legal means to conduct an effective investigation.48 However, in cases where the criminal proceedings are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies, or in case of other substantial reasons, the investigation must be organised through an independent commission of inquiry.49 This essentially refers to two possible scenarios: presumption of government complicity, and bias or insufficient expertise on the part of those conducting the investigation.50 Where such a commission of inquiry is established, the Investigation Principles and the Investigation Manual provide for detailed principles governing its impartiality and independence.51 The Investigation Principles also provide for a number of participatory rights for the victims’ families,52 as well as their right to a fair, adequate and prompt compensation.53 In particular, the victims, witnesses and others involved in the investigations must be protected from any form of pressure or violence. Victims’ families must be informed of, and have access to, any hearing as well as to all information relevant to the investigation, and must have a possibility to present other evidence. The victim’s families also have the right to insist that a medical or other qualified representative be present at the autopsy, and to have the body of the deceased returned to them upon completion of the investigation. An important principle enshrined in the Investigation Principles is the aut dedere aut judicare requirement under which the states are obliged either to bring the suspects to justice or to cooperate to extradite any such persons to other countries wishing to exercise jurisdiction. Jurisdiction in this context is universal. This principle is therefore applicable irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed.54 47 48 49 50 51 52 53 54

Investigation Manual, p. 16. Para. 10 of the Investigation Principles; and Investigation Manual, pp. 18–20. Paragraph 11 of the Investigation Principles. Investigation Manual, p. 21. Ibid., pp. 21–27. Paras. 15–16 of the Investigation Principles. Ibid., para. 20. Ibid., para. 18.

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1.1.5 Vienna Declaration The Vienna Declaration55 is a universal human rights document adopted by the second un World Conference on Human Rights held in Vienna in 1993. The purpose of the conference was to reaffirm the standards adopted under the Universal Declaration of Human Rights and to remind the states of their commitments under international human rights instruments.56 The central issue of the debate was the question of universality of human rights which was eventually, despite some governments arguing the concept of cultural relativity of human rights, endorsed by a strong majority of the governments in attendance.57 Accordingly, the major achievement of the Vienna Declaration was that it reaffirmed the universality of human rights, and consequently encouraged all governments to ratify international human rights instruments.58 It also emphasised that the principle of universality of human rights must go hand in hand with the regional human rights supervisory mechanisms.59 One of the principles recognised as the universal value under the Vienna Declaration was the prohibition of impunity for grave human rights violations and the obligation of their effective prosecution. The states were called upon to abrogate any legislation that could create the state of impunity for torture and other grave human rights violations and to prosecute such crimes; an obligation characterised as “providing a firm basis for the rule of law.”60 The Vienna Declaration also strengthened the obligation of prosecution of the acts of enforced disappearances. In particular, it called upon the states to take effective legislative, administrative, judicial or other measures to prevent, terminate and punish acts of enforced disappearance. However, this obligation was limited to enforced disappearances that have taken place on the territory or under the jurisdiction of the particular state. Thus the obligation of prosecution of the acts of enforced disappearances was not conceived in the context of the principle of universality, as was the case with the summary executions under the Investigation Principles.61 55 56 57

58 59 60 61

Vienna Declaration and Programme of Action, A/CONF.157/23, 25 June 1993. W. Allmand, “The Vienna Declaration and Plan of Action: After Five Years”, 11 Revue québécoise de droit international (1998), p. 120. C.M. Cerna, “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Context”, 16(4) Human Rights Quarterly (1994), p. 741. M. Posner, “Reflections on the Vienna Conference on Human Rights”, 19 American Society of International Law Proceedings (1997), p. 317. Para. 37 of the Vienna Declaration. Ibid., para. 60. Ibid., para. 62.

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The substance of the term prosecution in the context of enforced disappearances encompasses the duty of the state to investigate a suspected event of enforced disappearance and, if appropriate, to prosecute its perpetrators. The Vienna Declaration uses a strong wording to underline this obligation. The states are obliged to investigate and prosecute enforced disappearance “under any circumstances,” which is essentially the prohibition of impunity, already reaffirmed under the Vienna Declaration in the context of torture and other grave violations of human rights. Furthermore, the obligation to investigate and prosecute enforced disappearance exists whenever there is reason to believe that such an act has taken place. This is essentially a requirement of ex officio investigation and prosecution, irrespective of any official complaint made by the victims. By using the wording “whenever” there is “a reason to believe,” the Vienna Declaration sets a relatively low standard of suspicion that is not qualified by the requirement of “reasonableness” or otherwise substantially probable cause to believe that an offence has been committed.62 1.1.6 Principles on Impunity The Principles on Impunity set out the general obligations of the states in combating impunity for serious crimes under international law. The phrase serious crimes under international law, other than referring to the crimes under international humanitarian law, encompasses those human rights offences “that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.”63 The intention of the Principles on Impunity is to strengthen the prohibition of impunity for human rights offences proclaimed under the Vienna Declaration.64 Structurally, the text of the Principles on Impunity is divided into four parts. The first part deals with the definition of the general obligations of the states; the second part construes the right to truth; the third part deals with the right to justice; and the fourth part with the right to reparation/guarantees of non-recurrence. The duty of the states to investigate and prosecute human rights offences is conceived in the third part of the Principles on Impunity as the right to justice. 62 63

64

Loc. cit. D.F. Orentlicher, Promotion and Protection of Human Rights: Impunity – Report of the independent expert to update the Set of Principles to combat impunity (un Economic and Social Council, E/CN.4/2005/102, 18 February 2005), p. 6. See Preamble to the Principles on Impunity.

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Principle 19 provides for the qualitative requirements which the relevant investigations must meet and the scope of the requirement of prosecution. The investigation must be: (1) prompt; (2) thorough; (3) independent; and (4) impartial; and the requirement of prosecution must encompass all “appropriate measures in respect of the perpetrators,” in particular: (5) prosecution; (6) trial; and (7) punishment. Accordingly, under the Principles on Impunity, the effective reaction to a human rights offence in the sphere of criminal justice can be viewed as a legal process leading to the punishment of those responsible. Principle 19 envisages direct involvement of the victims in the decision to prosecute. Although the Principles on Impunity emphasise that the decision to prosecute lies primarily within the competence of the state authorities, it requires a possibility for the victims to institute criminal proceedings, particularly as “parties civiles or as persons conducting private prosecutions,” where such a possibility is recognised under national law.65 This provision essentially reaffirms the international law obligation to bring perpetrators of international crimes to justice. According to a document on the implementation of the Victims’ Rights Guidelines, the requirement to bring the offenders to justice is “a well-established obligation of States” independent of any other rights or wishes of victims. However, the importance of prosecutions and punishments for the reparation and redress of victims brings this requirement within the scope of victims’ rights proclaimed under the Principles on Impunity.66 The Principles on Impunity also envisage the universal jurisdiction of the states in prosecuting serious crimes under international law. This is essentially related to the aut dedere aut judicare requirement under which the states must either extradite to another state, or transfer before an international tribunal, any individual with respect to whom there is credible evidence of his or her individual responsibility for the serious crimes under international law, and if the state declines to do so, then it must prosecute him or her under its own jurisdiction.67 In addition, under Principle 20, the states must facilitate ­effective prosecution of international crimes. Although it remains their 65

66 67

The relevant part of Principle 19 reads: “Although the decision to prosecute lies primarily within the competence of the State, victims, their families and heirs should be able to institute proceedings, on either an individual or a collective basis, particularly as parties civiles or as persons conducting private prosecutions in States whose law of criminal procedure recognizes these procedures. States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.” redress, Implementing Victims’ Rights: A Handbook on the Basic Principles and Guidelines on the Right to a Remedy and Reparation (London, The Redress Trust 2006), p. 24. Principle 21 of the Principles on Impunity.

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­ rimary ­responsibility to prosecute such crimes, they must cooperate with the p relevant international or internationalised criminal tribunals.68 1.1.7 Victims Rights Guidelines The Victims Rights Guidelines69 represent an international consensus in the evolution of the victims’ rights proclaimed in the Basic Principles of Justice for Victims.70 The goal of this international document was not to create some new substantive rights but rather to maximise those victims’ rights already recognised in international human rights law and international humanitarian law.71 In other words, the Victims Rights Guidelines are a matter of procedural justice since they do not define what constitutes a violation of human rights law or humanitarian law, but instead they provide for the rights and duties corollary of such violations and determine the most appropriate procedural mechanisms in their implementation.72 The Victims Rights Guidelines refer to international human rights law and international humanitarian law. Different authors agree that there are differences between the two legal disciplines but that they nevertheless may be seen in this context as overlapping and mutually complementing the victims’ protection.73 The scope of the Victims Rights Guidelines is limited to “gross v­ iolations of international human rights law” and “serious violations of international humanitarian law.”74 However, the term gross, in the context of violations of international human rights law, only qualifies the situation that creates a basis for seeking adjudication.75 It simply means that the Victims Rights Guidelines 68 69

redress, supra n. 3.66, p. 25. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. 70 Bassiouni, supra n. 1.62, pp. 247–250; T. van Boven, The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (United Nations Audiovisual Library of International Law 2010), p. 1. 71 Bassiouni, supra n. 1.62, p. 251. 72 redress, supra n. 3.66, p. 25. 73 However, these authors see the wording of the Victims Rights Guidelines differently. Van Boven considers that it was not intended to reflect the difference between international human rights law and international humanitarian law, while Bassiouni stresses that the text expressly refers to two separate bodies of law and that it applies different standards with regard to each of them (Van Boven, supra n. 3.70, p. 2; and Bassiouni, supra n. 1.62, pp. 252–255). 74 Preamble to the Victims Rights Guidelines. 75 Bassiouni, supra n. 1.62, p. 251.

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focus on the worst human rights violations.76 Accordingly, the term gross relates to the type of a human right and qualifies the manner of its violation.77 This is important to note because the Victims Rights Guidelines were not intended to argue that other breaches of human rights do not entail (procedural) legal consequences.78 Instead, the qualification gross means that such violations of international human rights law and international humanitarian law, essentially constituting crimes under international law, produce a specific procedural requirement, such as, for example, with regard to the statute of limitations or universal jurisdiction, that does not necessarily have to be the same for other human rights offences.79 In the text of the Victims Rights Guidelines, this was reflected in the following terms: … [I]t is understood that the present Basic Principles and Guidelines are without prejudice to the right to a remedy and reparation for victims of all violations of international human rights law and international humanitarian law….80 Substantively, the Victims Rights Guidelines provide for the obligation on the states to (1) refrain from violating human rights, and (2) guarantee respect for such rights. The states are obliged to refrain from violating human rights either by acts or omissions, and they are obliged to take measures effectively securing human rights. The obligation to “guarantee human rights” encompasses the obligation of the state to prevent, investigate, bring to justice and punish the offenders, and provide reparation for the damage caused. In this context, the prevention, prosecution and reparation became interlinked.81 The investigation and prosecution, in terms of the Victims Rights Guidelines, must be: (1) effective; (2) prompt, (3) thorough, (4) impartial, and (5) capable of leading to an action (prosecution) against those responsible that could eventually result in their punishment by the competent courts.82 In addition, the states are required to implement the universal jurisdiction in their criminal justice systems and to effectively cooperate in extraditions and 76 77

78 79 80 81 82

redress, supra n. 3.66, p. 11. un Commission on Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms: Final report submitted by Mr. Theo van Boven, Special Rapporteur, E/CN.4/ Sub.2/1993/8, 2 July 1993, para. 8. Van Boven, supra n. 3.70, p. 3; Bassiouni, supra n. 1.62, p. 251. redress, supra n. 3.66, p. 12. Principle 26 of the Victims Rights Guidelines (emphasis added). redress, supra n. 3.66, p. 20. Principles 3(b) and 4 of the Victims Rights Guidelines.

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­surrenders of the suspects, allowing their prosecution before the courts of another state or international tribunals.83 The states are also required to avert the application of the statute of limitations to gross violations of international human rights law and serious violations of international humanitarian law. For other types of human rights offences, not amounting to international crimes, the states are requested not to apply a restrictive statute of limitations to civil claims and other relevant procedures.84 Under the Victims Rights Guidelines the victims must have the right to justice and an effective remedy which includes: (1) equal and effective access to justice; (2) adequate, effective and prompt reparation for harm sustained; and (3) access to relevant information.85 Each of these aspects essentially gives rise to an obligation to investigate, prosecute and punish the offenders.86 The requirement of equal and effective access to justice mandates for a possibility of the victim to trigger relevant judicial proceedings concerning his or her complaints. In the case of gross violations of international human rights law, other remedies, such as those in the administrative sphere, are not sufficient. The relevant judicial procedure in this context must be sufficiently fair and impartial and must allow for the victims’ effective participation in the proceedings.87 In analysing the function of criminal prosecution, an important aspect of the Victims Rights Guidelines, conceived under the requirement of reparation for the harm suffered,88 is the concept of satisfaction.89 It relates to a number of non-pecuniary measures that must be taken to alleviate the victims’ plight. The central aspect of satisfaction is a public acknowledgment of the offence, which most commonly takes the form of a declaration or decision on wrongfulness by the competent state body or a court. As such, in some instances it may be a remedy in itself, or it may serve as a precondition for some other form of reparation.90 Essentially, thereby, the decision of the competent criminal court finding the accused guilty of a gross offence under international human 83 84 85 86 87 88 89 90

Ibid., principle 5. Ibid., principles 6 and 7. Ibid., principle 11. C. Aptel, “Prosecutorial Discretion at the icc and Victims’ Right to Remedy Narrowing the Impunity Gap”, 10 Journal of International Criminal Justice (2012), pp. 1368–1369. Principles 12–14 of the Victims Rights Guidelines; redress, supra n. 3.66, pp. 31 and 32. The “reparation” includes: restitution; compensation; rehabilitation; satisfaction; and guarantees of non-repetition (principles 19–23 of the Victims Rights Guidelines). Principle 22 of the Victims Rights Guidelines. redress, supra n. 3.66, p. 38.

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rights law would have a direct remedial consequence, which would in turn imply that the criminal prosecution could be sought as a form of reparation through satisfaction. 1.2

Obligation to Investigate and Prosecute in the coe Instruments

1.2.1 Rec(85)11 on Crime Victims Rights A document which temporarily coincided, and in fact preceded, the adoption of the un 1985 Principles, recognising the conceptual problem of the criminal procedure as a relationship primarily concerned with the protection of the state (public) interest and the offenders’ rights, was the Rec(85)11 on crime victims rights (hereinafter: “Rec(85)11”).91 This document proclaims that the observance of the needs and interests of the victim must be a fundamental function of criminal justice, which should not be understood as a conflicting requirement with the traditional objectives of criminal procedure, such as the enforcement of criminal law norms, but an additional means for achieving those goals.92 The observance of the needs and interests of the victim primarily implies a requirement for the recognition of a number of participatory guarantees to the victims of crime, such as: treating victims in a constructive and reassuring manner and providing them with detailed information on the organisation of the pre-trial and court proceedings and their rights at all stages of the process (Sections 1, 2 and 9); securing their questioning in a manner which recognises and respects their personal situation (Section  8); securing the protection of their privacy (Section 15); and providing special protection to victims of most serious crime, such as organised crime (Section 16). There are, however, two structural requirements following from the general prerequisite of recognising victims’ rights in the context of the fundamental function of criminal justice: (1) the victims’ right to challenge the decision not to prosecute; and (2) the right to a redress by the criminal court. With regard to the former, Rec(85)11 provides that the prosecutorial discretion should not be exercised without the necessary consideration for the victim’s redress. In case of a decision not to prosecute, the victim must have the right: (1) to ask for a review by the competent authority of such a decision; or (2) to institute private proceedings (Sections 5 and 7). In any event, at all stages

91 92

Recommendation Rec(85)11 of the Committee of Ministers on the position of the victim in the framework of criminal law and procedure of 28 June 1985. Preamble to Rec(85)11.

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of the proceedings the victim must be appropriately informed of the outcome of the case before the competent authority (Sections 3, 6 and 9).93 As regards the victim’s redress, Rec(85)11 requires that there should be a possibility for the competent criminal court to order compensation of the victim by the offender. To that end, the applicable legislation should remove all possible legal and practical impediments, and must empower the criminal courts to receive and examine all relevant information concerning the victim’s injuries and losses. The compensation at issue could be a penal sanction, a substitute for penal sanction or a complementary order to a penal sanction. At the enforcement stage, in cases where the compensation is a penal sanction, it should be collected in the same way as fines and should have primacy over any other pecuniary sanction imposed on the offender. In other cases, the victim must be assisted at the enforcement level in collecting his or her monetary award (Sections 10–14). 1.2.2 Guidelines on Impunity The Guidelines on Impunity94 is an international human rights document making a clear distinction between the obligation to fight impunity which arises in the context of international human rights law and the same obligation which arises under international humanitarian law and international criminal law. It is, however, not intended to replace, qualify or resolve the questions of the relationship between these legal disciplines on the matter of impunity.95 The fight against impunity under the Guidelines on Impunity has a dual function. On the one hand, it aims at securing standard public-interest considerations such as deterrence of crime and upholding the rule of law, and at the same time, more specifically it is conceived as a matter of justice for the victims (Section i). The term victim is broadly defined as covering any natural person who has suffered physical or mental harm or economic loss, caused by a serious human rights violation. This term may also include indirect victims, that is to say the immediate family or dependants of the direct victim (Section II.5). Impunity is conceived as a state of affairs in which those responsible for serious human rights violations are not brought to account, irrespective of whether it concerns state agents or private parties under the jurisdiction of a state. Serious human rights violations in this context are breaches of rights 93 94 95

See further: infra 7.2.2. Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations of 30 March 2011. Section II.6 of the Guidelines on Impunity.

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which require criminal-law protection under the ECtHR case-law. This specifically concerns serious breaches of the following rights: the right to life (Article 2 echr), the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 echr), the prohibition of forced labour and slavery (Article 4 echr), and in some instances the right to liberty and security (Article 5 § 1 echr) and the right to respect for private and family life (Article 8 echr).96 In fighting impunity, the states are generally required to provide adequate criminal-law provisions securing effective punishment of serious human rights violations. In some instances, this may also include disciplinary measures against those responsible for a serious human rights violation or for maintaining the state of impunity (Section iii). The Guidelines on Impunity specify the manner in which this general obligation should be enforced by conceiving the particular requirements of an effective investigation and prosecution of a serious human rights offence. The requirement of an effective investigation is of an absolute character and such investigation must take place in cases of killings, whether by state agents or private parties, and all other suspicious deaths, including enforced disappearances (Article 2 echr). Further, an effective investigation must be undertaken in cases of credible claims or reasonable indications that a person has been seriously ill-treated (Article 3 echr); if there is a situation of potential human trafficking (Article 4 echr); enforced disappearance of a detained person (Article 5 echr); and in instances of credible claims of serious violations of the right to respect for private and family life under Article 8 echr (Section III.2–5). The investigation must be undertaken ex officio, whenever there are reasonable grounds to believe that a serious human rights violation has occurred, or upon a complaint by the victim. However, once the investigation has been instituted, a withdrawal of the complaint by the victim cannot lead to a termination of the public action. All decisions to initiate or to terminate investigations may be taken only by an independent and competent authority, and they must be amenable to some form of a challenge by means of a judicial process (Section V.5). The investigation at issue must be adequate, that is to say be capable of ­leading to the identification and punishment of those responsible. The investigation must also be thorough, which means that it must comprehensively encompass all the circumstances of the case, including possible systemic failures 96

Ibid., Section II.3. Note that the last sentence of this provision contains an ambiguous statement according to which “not all violations of these articles will necessarily reach this threshold,” without, however, identifying what the threshold at issue is.

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leading to the violation, and the identification and examination of all relevant evidence in a thorough, consistent and objective manner. Further, the investigation must be impartial and independent, which encompasses institutional and practical independence of those conducting the investigation from those implicated in the events. The investigation must be conducted promptly and with necessary diligence. There should also be sufficient public scrutiny of the investigation, which should not, however, endanger the proper conduct of the investigation (Section vi). In this context, particular emphasis is placed on the victim participation in the investigation, which should be provided to the extent necessary to safeguard the victim’s legitimate interests. It should also include mechanisms of protection and social assistance to the victims in the course of the proceedings (Section vii). The scope of the fight against impunity under the Guidelines on Impunity is not limited to the investigation stage of the proceedings. In particular, the same requirements relevant for the investigation are applicable at the prosecution stage. In this context the Guidelines on Impunity set out the relevant principles using the wording of the ECtHR case-law, emphasising that the states have a duty to prosecute where the outcome of an investigation warrants it, although there is no right guaranteeing the prosecution or conviction of a particular person (Section viii). Moreover, the states should secure effective, prompt and independent judicial proceedings in case of prosecution, as well as, if applicable, proportionate and appropriate sanctions and full and prompt execution of those sanctions (Sections ix–xi). The Guidelines on Impunity also emphasise the importance of international cooperation in combating impunity, in particular through the mechanisms of mutual legal assistance, prosecutions and extraditions (Section xii). 1.2.3

coe Mechanisms on the Protection from Sexual Exploitation and Abuse The problems of human trafficking,97 sexual abuse of adults98 and children,99 as well as other forms of physical and psychological abuse of children,100 are well recognised as human rights offences in international human rights law. These occurrences have been a matter of long and profound research interest and normative initiatives of the coe bodies and institutions.

97 98 99 100

ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010. ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012. ECtHR (Judgment) M.P. and Others v. Bulgaria, no. 22457/08, 15 November 2011. ECtHR (Judgment) Z. and Others v. the United Kingdom, no. 29392/95, 10 May 2001.

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The concern over the problem of various forms of sexual exploitation of children and young adults resulted in the Recommendation Rec(91)11 (hereinafter: “Rec(91)11”),101 drafted by a sub-committee of the coe Committee on Crime Problems. Rec(91)11 draws inferences from the peculiarities of the problem, notably its invisibility and mobility; the necessity to balance carefully all objectives and aspects involved, adopting a victimological approach; and its overestimation by general public and underestimation by criminal justice and other competent authorities.102 It also relies on instruments of international human rights law such as the echr.103 The function of criminal law and criminal procedure in this context is recognised as ex ante and ex post measure of protection and securing the victims’ rights, but it is also emphasised that criminal law mechanism could be marked by possibilities and limitations in the prevention and repression of acts of sexual abuse and exploitation of children and young adults (Section III.9). The protection of children from acts involving pornography must be secured ex ante through penalisation and appropriate sanctions for those responsible for such acts, taking into account the gravity of their offences. In the circumstances, these acts may include production, distribution, and the mere possession of child pornography (Section I.B.1–4). Furthermore, the state authorities are obliged not only to prevent, but also to detect and investigate offences involving sexual exploitation of children and young adults (Section I.A-c.9) and they must punish those responsible for pornography involving children (Section I.B.1) and prostitution of children and young adults (Section I.C.3). To that end, the states are also invited to introduce rules on extraterritorial jurisdiction allowing prosecution and punishment of their nationals who have committed offences of sexual exploitation of children and young adults outside the national territory, and to secure international cooperation in that respect (Section III.2). In addition, Rec(91)11 envisages a number of social and participatory rights of the victims in criminal proceedings, such as special protective and participatory measures at the trial, the right to receive appropriate information and 101 Recommendation Rec(91)11 of the Committee of Ministers to member states concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults of 9 September 1991. 102 Council of Europe, Sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults: Recommendation No. R (91) 11 and Report of the European Committee on Crime Problems – Legal issues (Strasbourg, Council of Europe Press 1998), pp. 15–18. 103 See Preamble to Rec(91)11.

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assistance during the proceedings, and protection of personal data. It also requires the states to set up an appropriate compensation scheme for the victims, including the possibilities of confiscation and seizure of the proceeds related to the offences of sexual exploitation of children and young adults (Section I.A-d.12–16). Further development in this context within the coe system, and in particular on the matter of trafficking in human beings for the purpose of sexual exploitation, was the adoption of the Recommendation No. R (2000) 11 on action against trafficking in human beings (hereinafter: “Rec(2000)11”).104 This instrument is essentially another international human rights law mechanism which draws the relevant inferences from the echr and other, more specialised, mechanisms of international law.105 It establishes the concept of social reaction through the mechanisms of criminal law, as one of the basic general measures in the field of protection from human trafficking for the purpose of sexual exploitation. The states are thus obliged to “apprehend, prosecute and punish” all those responsible for such acts. In particular, protection through the mechanisms of criminal law includes penalisation of the specific offence of trafficking in human beings for the purpose of sexual exploitation and the provision of appropriate sanctions for such offence, both for physical and legal persons. The relevant sanctions must be proportionate to the gravity of the offence and, where applicable, must include dissuasive custodial sentences, and seizure and confiscation of the proceeds of crime. In addition to the prevention through penalisation and sanctioning, the states should strengthen their investigatory and supervisory facilities and activities (Section VI.42–46). Rec(2000)11 provides for specific measures aimed at enhancing the international cooperation in investigation and prosecution of human trafficking for the purpose of sexual exploitation. Accordingly, the states should secure effective judicial cooperation and extradition of those charged or convicted of these offences. The best place to prosecute under Rec(2000)11 is the ­country 104 Recommendation No. R (2000) 11 of the Committee of Ministers to member states on ­action against trafficking in human beings for the purpose of sexual exploitation of 19 May 2000. The scope of Rec(2000)11 on the problem of trafficking in human beings for the purpose of sexual exploitation includes “the procurement by one or more natural or legal persons and/or the organisation of the exploitation and/or transport or migration – legal or illegal – of persons, even with their consent, for the purpose of their sexual exploitation, inter alia by means of coercion, in particular violence or threats, deceit, abuse of authority or of a position of vulnerability” (Section I(1) of the Appendix to Rec(2000)11). 105 Preamble to Rec(2000)11.

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where evidence of offences can be uncovered. The states should therefore cooperate to extradite the offender to that forum. Rec(2000)11 also emphasises the universal jurisdiction as the best model of exercising the national criminal jurisdiction. Specifically, the states should establish rules governing extra-­territorial jurisdiction so as to permit and facilitate the prosecution and conviction of the offenders of human trafficking for the purpose of sexual exploitation, irrespective of their territorial jurisdiction, covering also cases where the offences took place in more than one country (Section VI.43, 47–48). Lastly, it should be noted that Rec(2000)11 provides for a wide scope of participatory and social rights to the victims of the offences of human trafficking for the purpose of sexual exploitation, such as assistance and protection during the proceedings, help in their reintegration into society, repatriation, residence benefits, medical care and other social services (Section v). It also emphasises the need for providing a compensatory scheme to the victims and empowering the courts to order compensation to the victim by the offender (Section V.33). Similar guarantees, focused on the protection of children against sexual exploitation, are provided in the Recommendation Rec(2001)16 (hereinafter: “Rec(2001)16”).106 This instrument envisages a wide scope for the problem of sexual exploitation of children and the possible conducts leading to the commission of the offences related to child pornography.107 Within the general structure of Rec(2001)16, the mechanisms of criminal law are provided as specific measures of protection, which include penalisation of the conduct at issue and adequate procedural guarantees of investigation and prosecution of such offences (Section III.28–29). The penalisation must encompass conduct related to the child pornography, prostitution of children and trafficking in children (Sections III–IV.28, 44–45, 48–49, and 55). In particular, the limitation periods should start only after the expiry of the legal period in which the child is considered to be a child; there should be limitations on the person convicted of the offences involving child sexual abuse from further engagement or contact with children; the states 106 Recommendation Rec(2001)16 of the Committee of Ministers to member states on the protection of children against sexual exploitation of 31 October 2001. 107 The relevant part of Section 1 of Rec(2001)16 reads: “c. the term child pornography shall include material that visually depicts a child engaged in sexually explicit conduct, a person appearing to be a child engaged in sexually explicit conduct or realistic images representing a child engaged in sexually explicit conduct. Child pornography includes the following conducts committed intentionally and without right, by any means:

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should secure measures of seizure and confiscation of the proceeds of crime, and ensure appropriate responsibility of legal persons (Section III.37–43). The procedural requirements are provided as an obligation on the police and all other competent authorities, and, in general, include detection and investigation of the offences related to the sexual exploitation of children and punishment of those responsible for such offences (Section III.28 and 38). Rec(2001)16 envisages specific measures of international cooperation in the prevention, prosecution and punishment of the offences of sexual exploitation of children. The requirement of penalisation extends not only to the offences committed on the territory of a particular state but also to the offences committed outside its territory. The states are accordingly required to establish extra-territorial jurisdiction whenever the offences at issue are committed by their nationals, or any other person who has habitual residence on their territory, or when the victim is their national. The jurisdiction to prosecute these offences should exist irrespective of whether they are punishable under the law of the state where they were committed. The states should also provide for the possibility of extradition for these offences and when that is not possible, for example when the offender is the state’s national, to have the mechanisms to take over the prosecution and to prosecute it under the national jurisdiction. The states are also required to act diligently in the course of international cooperation in matters related to the offences of sexual exploitation of children (Sections III and VII.28, 63–75). Under Rec(2001)16 the states are also requested to secure effective participation and support to the victims in the course of criminal proceedings, and to establish an effective and appropriate compensatory scheme which would provide for a full repair of the damage suffered by the victims (Sections III and VII.30–36). The relevant principles set out in the observed Rec(2000)11 and Rec(2001)16, inspired by other mechanisms of international law and international human – producing child pornography for the purpose of its distribution; – offering or making available child pornography; – distributing or transmitting child pornography; – procuring child pornography for oneself or for another; – possessing child pornography. d. the term child prostitution means offering, obtaining, providing, procuring or using a child for sexual activities for remuneration or any other kind of consideration; e. the term trafficking in children includes recruiting, transporting, transferring, harbouring, delivering, receiving or selling of children for purposes of sexual exploitation.”

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rights law, in particular the echr and the case-law of the ECtHR, led to a ­further normative initiative of the coe: the adoption of the European AntiTrafficking Convention.108 This Convention covers all forms of trafficking in human beings at the national and transnational level,109 and the establishment of a monitoring mechanism: the Group of Experts on Action against Trafficking in Human Beings (greta). The European Anti-Trafficking Convention reaffirms the model of protection through the mechanisms of substantive and procedural criminal law. Substantive protection is inspired by the requirement of harmonisation between the member states in criminalising the activities of human trafficking and thereby preventing the possible criminal preferences of the offenders searching for the most lenient jurisdiction in which to commit offences, and facilitating cooperation between the member states.110 The obligation of criminalisation relates to acts such as the offender knowingly using the services of a victim, tampering with travel and identity documents, aiding and abetting and attempting to commit the offences of human trafficking. In addition, member 108 Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005 (cets No. 197). See further: Explanatory report to the Council of Europe Convention on Action against Trafficking in Human Beings, para. 20. This Convention was complemented by the adoption of the Council of Europe Convention against Trafficking in ­Human Organs (cets No. 216), which was open for signature on 25 March 2015. So far only one coe Member State has ratified that Convention (available at www.coe.int/en/web/ conventions/search-on-treaties/-/conventions/treaty/216/signatures?p_auth=3uaek0u8, last visited 16 July 2016). 109 The term “trafficking in human beings” is defined in Article 4 as follows: “a. ‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; b. The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in human beings’ even if this does not involve any of the means set forth in subparagraph (a) of this article…” 110 Explanatory report, supra n. 3.108, para. 216.

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states must provide for corporate liability (Articles 18–22). The states are also obliged to penalise the offences at issue by providing effective, proportionate and dissuasive criminal sanctions and other measures, such as confiscation of instrumentalities and proceeds of crime or closure of establishments associated with human trafficking (Article 23). Criminal investigation and prosecution under the European Anti-­Trafficking Convention, in principle, must be instituted ex officio, irrespective of any official complaint by the victim. The only exception to this, under Article 27, is when the offence was committed outside the territory of the member state, in which case it may be expected, depending on the relevant domestic legislation, that the victim will lodge a criminal complaint himself or herself. The lodging of the criminal complaint must be made easier for the victim in that he or she must have the opportunity to lodge such a complaint before the authorities of his or her country of residence, which, in case they do not have jurisdiction to prosecute, must forward the complaint to the competent country where the offence was committed.111 The European Anti-Trafficking Convention mandates broad jurisdictional scope in prosecuting offences of human trafficking. Under Article 31(1) the states are obliged to assert jurisdiction under: (a-c) the variant territoriality principle (offences committed on the territory, ship flying the state’s flag or aircraft registered in the state party), (d) the active personality principle, covering nationals and stateless persons with a habitual residence on the state’s territory, and (e) the principle of passive personality. The states are also, under Article 3(3), bound by the principle aut dedere aut judicare. Accordingly, if they refuse to extradite an individual on their territory on the grounds of his or her nationality, they are obliged to prosecute him or her themselves.112 The European Anti-Trafficking Convention also establishes a number of participatory rights, in particular for the protection of victims and collaborators of justice from any form of pressure or coercion in the course of investigation and court proceedings (Articles 28–30).113 Similar measures of criminal justice intervention in the sphere of human rights offences are provided under the European Convention on the Protection from Sexual Abuse,114 which, drawing inferences from Rec(91)11 and 111 112 113 114

Ibid., paras. 275–279. Ibid., paras. 327–334. See further: Ibid., paras. 280–326. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse of 25 October 2007 (cets No. 201).

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Rec(20001)16 as well as other mechanisms of international law and international human rights law,115 deals with the problem of sexual exploitation and sexual abuse of children.116 The criminal law intervention could be observed as substantive and procedural. The substantive requirement relates to the criminalisation of certain conduct, notably all forms of sexual abuse, child prostitution, child pornography and pornographic performances, corruption and solicitation of children for sexual purposes, aiding or abetting and attempting to commit the offences at issue. In addition, it obliges the states to provide for a corporate liability (Articles 18–24 and 26). Sanctions for these offences must be effective, proportionate and dissuasive and the measures of seizure and confiscation of the instrumentalities and proceeds of crime must be put in place (Articles 27 and 28). The procedural protection through the effective criminal investigation and prosecution must be set in motion irrespective of any official complaint lodged by the victim. This rule provided in Article 32 of the European Convention on the Protection from Sexual Abuse, unlike under Article 27(1) of the European Anti-Trafficking Convention, recognises no exceptions and, moreover, requires that the prosecution not be terminated in case of the victim’s withdrawal of the complaint. Moreover, under Article 25(6) the states cannot subordinate their obligation of prosecution to the question whether the criminal complaint was lodged or an official action taken in the state where the offence was committed. The European Convention on the Protection from Sexual Abuse also expressly requires, in Article 30(5), that the investigation be effective, and suggests certain measures, such as special investigative techniques and specialisation, through which the effectiveness could be achieved. Under Article 25 of the European Convention on the Protection from Sexual Abuse, similarly to Article 31(1) of the European Anti-Trafficking Convention, criminal jurisdiction must be asserted under the variant territoriality principle and the active personality principle, and must also include the person (not only stateless but any) who has habitual residence on the territory of that state. However, unlike under Article 31(1) of the European Anti-Trafficking Convention, the principle of passive personality is only a desired suggestion and not

115 See further: Explanatory report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, paras. 1–36. 116 This international instrument has also a monitoring mechanism: The Committee of the Parties (Article 39).

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an obligation.117 On the other hand, the aut dedere aut judicare principle applies equally under both instruments. The European Convention on the Protection from Sexual Abuse also establishes various participatory and social rights of the victims of sexual abuse, notably those related to the protection of their privacy, limitation periods that should start running only beyond the age of majority of the child, training and conduct of the state officials dealing with the problems of child sexual abuse, and the protection of children from reprisals and repeat victimisation (Articles 30–36).118 1.2.4 coe Mechanisms Related to Domestic Violence Various forms of domestic violence have been recognised as matters falling within the scope of international human rights law, mandating criminal law protection from such acts.119 Drawing on principles related to the right to life, prohibition from torture, the right to liberty and security and the right to a fair trial established in the case-law of the ECtHR, as well as other mechanisms of international law and international human rights law, the coe Committee of Ministers addressed the problem of domestic violence against women in the Recommendation Rec(2002)5 (hereinafter: “Rec(2002)5”).120 This mechanism expressly recognises that the domestic authorities have the obligation to prevent, investigate and punish acts of domestic violence irrespective of whether the state or private persons are responsible for such acts (Section ii). To that end, the states are required to penalise conduct amounting to domestic violence and to secure the effective possibility of lodging complaints and instituting ex officio prosecutions for such acts (Sections 34–35 and 38–39). The same obligations were reaffirmed in the Recommendation 1582 (2002) of the coe Parliamentary Assembly121 which stressed that the offences of domestic violence should be penalised as serious criminal offences, and their occurrence should lead to an effective investigation and legal proceedings. The obligation to prevent and prosecute domestic violence was set out as one of the principal and specific purposes of the European Convention on 117 Explanatory report, supra n. 3.115, para. 170. 118 See further: Ibid., paras. 209–242. 119 See, for example, ECtHR (Judgment) A. v. Croatia, no. 55164/08, 14 October 2010. See further: L. Hasselbacher, “State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection”, 88(2) Northwestern Journal of International Human Rights (2010), pp. 190–215. 120 Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence of 30 April 2002. 121 Recommendation 1582 (2002) of the Parliamentary Assembly on domestic violence against women of 27 September 2002.

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Domestic Violence.122 The scope of this mechanism extends beyond the mere occurrences of domestic violence and covers all forms of violence against women which affects women disproportionately. Any such form of violence, under the European Convention on Domestic Violence, must be understood as a violation of human rights (Articles 2 and 3). The criminal law protection under the European Convention on Domestic Violence is substantive and procedural. Substantive protection forms part of the legal measures in the sphere of criminal, civil and administrative law, which must be introduced in securing effective prevention and combating domestic violence. Within this scheme, the criminal law measures are introduced as punitive measures against the perpetrators of those forms of violence which require a criminal law response.123 Sanctions for the offences of domestic violence and other forms of violence against women must be effective, proportionate and dissuasive (Articles 45 and 46). The European Convention on Domestic Violence, in Article 49, obliges the states to conduct a speedy and effective investigation and prosecution of the offences of domestic violence and violence against women, in conformity with the fundamental principles of human rights. This implies in particular the requirement of providing a prompt and appropriate response to the allegations of violence and offering adequate and immediate protection to victims ­(Article 50). The state authorities, under Article 55, have an ex officio obligation 122 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence of 11 May 2011 cets No. 210 (Istanbul Convention). See Further: Explanatory report to the Convention on Preventing and Combating Violence against Women and Domestic ­Violence, para. 30. This Convention, in Article 66, also establishes a monitoring mechanism: The Group of experts on action against violence against women and domestic violence (grevio). The Convention on Preventing and Combating Violence against Women and Domestic Violence complements the general protection of women from all forms of discrimination established by the un Convention on the Elimination of All Forms of Discrimination against Women (cedaw), 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13. Although not explicitly providing for a necessity of prosecution of domestic violence, the cedaw Committee, a monitoring body for the implementation of that Convention, has recognised that gender-based violence is a form of discrimination, which requires, inter alia, criminalisation of such a conduct and an effective implementation of the criminallaw protection (see General Recommendation No. 19 on violence against women, (1992) un doc. CEDAW/C/1992/L.1/Add.15). 123 In particular, these include: psychological and physical violence, stalking, sexual violence and rape, forced marriage, genital mutilation, forced abortion and sterilisation, sexual harassment (which could be also subject of other forms of legal protection), and aiding or abetting and attempting to of commit these offences (Articles 33–4; Explanatory report, supra n. 3.122, para. 149).

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to investigate and prosecute acts of violence committed on the territory of the state, irrespective of any complaint lodged, or withdrawn, by the victim. Under Article 44 of the European Convention on Domestic Violence, the states must exercise jurisdiction over the offences of domestic violence and violence against women by observing the variant territoriality principle (offences committed on the territory, ship flying the state’s flag or aircraft registered in the state party), the active personality principle (covering persons with a habitual residence on the state’s territory), and should endeavour to assert jurisdiction on the principle of passive personality. When asserting jurisdiction over the offences covered by the European Convention on Domestic Violence, the states must ensure that it does not depend on the question of dual criminality with the state where the offences were committed. In addition, the states should, if applicable, exercise their jurisdiction under the active personality principle irrespective of an official complaint or denunciation from the authorities of the state where the offences were committed. The states are also obliged by the principle aut dedere aut judicare, and thus, whenever they refuse to extradite on the basis of the suspect’s nationality, they should prosecute themselves. In Article 48 the European Convention on Domestic Violence excludes the possibility of alternative dispute resolution in cases of domestic violence, which aims to avoid re-privatisation of the offences at issue and to enable the victims to seek justice before a competent court.124 Similarly, under Article 58, when prescribing the statute of limitations, the states must ensure that it is commensurate with the gravity of the offences and the circumstances of the case. The European Convention on Domestic Violence also establishes the obligation to create a compensatory scheme for the victims and to secure social and procedural assistance and support, in particular through protection during the investigation and judicial proceedings.125 1.2.5 coe Mechanisms on the Protection of Victims of Terrorist Acts The coe Committee of Ministers in its Guidelines on the Protection of Victims of Terrorist Acts,126 recognising terrorist acts as conduct jeopardizing human rights, underlined the obligation of the states to protect fundamental rights of 124 Explanatory report, supra n. 3.122, para. 252. 125 Chapter iv, Chapter v (Articles 29 and 30) and Chapter vi (Articles 52–53 and 56–57) of the European Convention on Domestic Violence. See further: Explanatory report, supra n. 3.122, paras. 110–148, 149–174, 264–276, 283–295. 126 Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts of 2 March 2005.

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those within their jurisdiction, and in particular the right to life. To that end, whenever there is a victim of a terrorist act, the states must conduct an effective official investigation into the circumstances of the case. The states must also avoid placing any excessive burden on the victim in that regard. The state authorities have the obligation to conduct an investigation irrespective of a formal complaint by the victim, and they should secure the possibility for a review of the decision not to prosecute whenever such a decision is adopted (Section iv). According to the commentators, these measures were adopted in compliance with the requirements of the echr and the case-law of the ECtHR.127 The Guidelines on the Protection of Victims of Terrorist Acts provide further measures of social and legal protection and assistance to the victims of terrorist acts, including the right to access to a court in obtaining compensation, and oblige the state to set up an effective compensatory scheme (Sections v–ix). A further normative confirmation of the principles set out in the Guidelines on the Protection of Victims of Terrorist Acts was the adoption of the Convention on the Prevention of Terrorism.128 This international instrument has a dual purpose: (1) to enhance the efforts of the states in preventing terrorism, and (2) to enhance their effectiveness in dealing with the effects of terrorism.129 These two objectives must be met in particular with regard to the requirement of a full enjoyment of human rights and specifically the right to life.130 Protection through the mechanisms of criminal law is substantive and ­procedural. Substantive protection relates to the criminalisation of certain conduct,131 and the provision of effective, proportionate and dissuasive sanctions and other penal measures (Article 11). The procedural protection is conceived, under Article 15, as the duty to investigate. It arises whenever information, irrespective of its source, was received that a person suspected of 127 Council of Europe Directorate General of Human Rights, Human rights and the fight against terrorism: The Council of Europe Guidelines (Strasbourg, Council of Europe Publishing 2005), pp. 54–57; Council of Europe Committee on Crime Problems and Group of Specialists on Assistance to Victims and Prevention of Victimisation, Victims of ­Terrorism – Policies and Legislation in Europe, PC-S-AV (2005) 04, 11 May 2005, p. 5. 128 Council of Europe Convention on the Prevention of Terrorism of 16 May 2005 (cets No.196). 129 See further: Explanatory report to the Convention on the Prevention of Terrorism, paras. 54–55. 130 Article 2 of the Convention on the Prevention of Terrorism. 131 Articles 5–10 require criminalisation of: public provocation to commit a terrorist offence, recruitment for terrorism, training for terrorism, as well as ancillary offences and the conduct of legal entities.

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terrorism may be present on the territory of the state. In these circumstances, the state authorities must take all necessary measures to prosecute or extradite the suspect at issue. The states’ criminal jurisdiction over the offences of terrorism must be established based on the variant territoriality principle (offences committed on the territory, ship flying the state’s flag or aircraft registered in the state party), and the active personality principle. The states may also establish jurisdiction when the offence was committed against their nationals, when it was committed on their diplomatic and consular premises or other governmental facility, when the offence was directed to compel the state from refraining from an act, when the offence was committed by a stateless person with the habitual residence on the territory of the state, and when the offence was committed on board an aircraft operated by the Government of the state (Article 14). The criminal jurisdiction must be exercised in compliance with the aut dedere aut judicare principle (Articles 14(3) and 18) and the states must diligently ­cooperate in extradition and prosecution of the offences of terrorism (Articles 17 and 19). The Convention on the Prevention of Terrorism sets out the measures for protection, compensation and support for the victims of terrorism only in broad terms. Specifically, under Article 13 it requires the states to adopt such measures as may be necessary to protect and support the victims of terrorism committed within their territory. As an example, this provision refers to financial assistance and compensation for victims and their close family members. Other measures envisaged under this provision may include effective access to courts, in particular access to criminal procedures, and access to information.132 2

Obligation to Investigate and Prosecute Human Rights Offences in the Mechanisms of Soft Enforcement

Obligation to Investigate and Prosecute under the iccpr Conceptualising the Obligation to Investigate and Prosecute under the iccpr The obligation to investigate and prosecute under the iccpr is in general conceived as a duty to provide a remedy in response to credible allegations of violations of the iccpr substantive rights.133 Accordingly, the absence of an 2.1 2.1.1

132 Explanatory report, supra n. 3.129, para. 156. 133 S. Joseph and M. Catan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford, Oxford University Press 2013), p. 871.

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effective investigation implies ineffectiveness of remedies. Moreover, failures to investigate and prosecute could also lead to a direct violation of the substantive provision of the iccpr, in so far as the domestic authorities left a credible allegation of the breach of the substantive right unexplained.134 In terms of the practical reasoning, the obligation to investigate and prosecute is construed under Article 2 (3) iccpr (the right to a remedy) taken in conjunction with one of the substantive provisions of that Covenant.135 Accordingly, the right to a remedy under Article 2 (3) iccpr does not have its own free-standing nature and cannot be invoked in isolation from other provisions of the iccpr.136 Rather, it should be read in conjunction with other guarantees under the iccpr providing for the requirement of institutionally secured procedural safeguards.137 Remedies must effectively function in the administrative and judicial sphere. The latter can be secured by different means, such as direct applicability of the iccpr, application of some other comparable provisions of law, or the interpretive effect of the iccpr in the application of domestic law. At the same time, administrative remedies must secure the enforcement of “the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies,” failure of which could lead to a separate breach of the iccpr.138 Remedies must have a dual function: preventive and compensatory. The preventive function requires a cessation of an ongoing violation, whereas the compensatory one requires reparations to the individuals whose rights have been violated, which can, in the circumstances, be secured by “bringing to justice the perpetrators of human rights violations.”139 Similarly to the requirements of an effective investigation, failures in this respect may lead to a ­separate breach of the iccpr.140 By being conceived as a general clause under the concept of the right to a remedy, the duty to investigate and prosecute is given a prominent role in

134 hrc (Views) Barbato v. Uruguay, no. 84/81, 21 October 1982, para. 9.2; hrc (Views) MacCallum v. South Africa, no. 1818/08, 25 October 2010, para. 6.4. 135 hrc (Decision) Kazantzis v. Cyprus, no. 972/01, 7 August 2003, para. 6.6; hrc (Views) Poma Poma v. Peru, no. 1457/06, 27 March 2009, para. 7.8; hrc (Views) Benitez v. Paraguay, no. 1829/08, 12–30 March 2012, para. 7.5;. 136 Joseph and Catan, supra n. 3.133, p. 869. 137 M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary (Kehl, N.P. Engel 2005), p. 38. 138 ccpr, supra n. 1.82, para. 15. 139 Ibid., paras. 15–16. 140 Ibid., para. 18.

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­securing the iccpr rights.141 Accordingly, the duty to investigate and prosecute could be invoked in respect of various instances of relevantly important and serious breaches of the iccpr substantive rights. The most prominent examples in which such a duty arises will be discussed further below in an attempt to elucidate the conceptual premises on which it can be construed in general.142 2.1.2 General Duty to Effectively Apply Criminal-Law Mechanisms In the context of the right to a remedy under the iccpr, the general duty to effectively apply criminal-law mechanisms (of investigation and prosecution) relates to particular breaches of rights recognised as criminal under the domestic or international law, in particular torture and similar cruel, inhuman and degrading treatment (Article 7 iccpr), summary and arbitrary killings (Article 6 iccpr) and enforced disappearance (Articles 6, 7 and 9 iccpr).143 Whenever the domestic authorities are faced with a grave criminal offence under domestic law or international criminal law, one that endangers individual human rights, they should secure compliance with the international human rights law principles; otherwise an issue related to the question of effective application of criminal-law mechanisms might arise. The problem essentially relates to the application of measures relieving perpetrators from personal responsibility, as has occurred with certain amnesties as well as legal immunities and indemnities, reliance on the perpetrator’s official status, and other impediments to the establishment of legal responsibility, such as the defence of obedience to superior orders or unreasonably short statutory limitation periods.144 These impediments to the effective application of criminal-law mechanisms could be analysed from three perspectives: (1) amnesties, (2) sanctions and sentence-execution practices, and (3) operational procedural discretion.145 2.1.2.1 Amnesties As already observed above, the General Comment No. 31 makes a specific reference to amnesties as prohibited measures relieving perpetrators of serious 141 See further: Joseph and Catan, supra n. 3.133, p. 882. 142 The hrc’s General Comments play a particularly important role in this respect. See, for instance, the manner in which the obligation to investigate and prosecute could be invoked with regard to the right to privacy (Article 17 iccpr) on the basis of the hrc’s General Comment to that provision (ccpr (General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Faily, Home and Correspondence, and Protection of Honour and Reputation) 8 April 1988, HRI/GEN/1/Rev.9 (Vol. i), para. 11). 143 ccpr, supra n. 1.82, para. 18. 144 Loc. cit. 145 See further: Joseph and Catan, supra n. 3.133, p. 869.

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human rights violations (those amounting to a criminal offence under national or international law) from personal responsibility. The same prohibition is provided under the General Comment No. 20 related to the acts of torture.146 This prohibition of the application of amnesties is a right-based consideration since the impunity resulting from amnesties leads to those responsible not being brought to justice and thus violates the right to a remedy guaranteed under Article 2 (3) iccpr, read in conjunction with other relevant substantive provisions of the iccpr. In other words, in case of gross human rights offences the iccpr prohibits the enactment of amnesties which could trump the right to a remedy.147 Manfred Nowak considers that this fight against impunity has led to the recognition of “the right of victims of gross human rights violations to demand that Governments criminally prosecute the perpetrators.”148 In its landmark case on amnesties Rodríguez v. Uruguay,149 the hrc examined an amnesty law enacted by Uruguay, which excluded the possibility of any investigation and prosecution of the allegations of torture by a prior regime. Before the hrc, the Government relied on general considerations ­related to the adoption of the amnesty law, but the hrc rejected such approach and confined itself to examining the arguments related to the individual allegations of torture. Drawing on the right to a remedy under Article 2 (3) iccpr, the hrc rejected another Government’s argument, namely that there was no obligation to investigate violations of human rights by the prior regime, and stated that in fact an obligation of full investigation existed under the iccpr. Moreover, the hrc expressly reaffirmed its position that amnesties for gross violations of human rights were incompatible with the iccpr, in particular with the responsibility of the state to provide effective remedies to the victims of such human rights abuses.150 The same approach was followed in several cases concerning disappearances. In the case of Benaziza v. Algeria,151 concerning the impossibility of the relative of a victim of enforced disappearance to request an investigation into the event, by the operation of amnesty laws granting impunity for such conduct and prohibiting the victims to bring such complaints to the attention of the competent authorities, the hrc found a violation of the victim’s relatives’ right to an effective remedy under Article 2 (3) iccpr read in ­conjunction 146 ccpr, supra n. 1.82, para. 15. According to the text, amnesties are “generally incompatible with the duty of States to investigate acts [of torture]; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future.” 147 Joseph and Catan, supra n. 3.133, p. 880. 148 Nowak, supra n. 3.137, p. 67. 149 Ibid., p. 66; hrc (Views) Rodríguez v. Uruguay, no. 322/88, 19 July 1994. 150 hrc (Views) Rodríguez v. Uruguay, no. 322/88, 19 July 1994, paras. 12.1–13. 151 hrc (Views) Benaziza v. Algeria, no. 1588/07, 16 July 2010.

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with Articles 6 (right to life), 7 (prohibition from torture), 9 (right to liberty and security) and 16 (recognition before the law) iccpr. The hrc rejected the Algerian Government’s reliance on the general socio-political and security environment that prevailed over the relevant time, as a reason for excluding the possibility of examining particular cases through the mechanism of individual complaints, emphasising that the amnesty law at issue promoted impunity and thus ran counter to the requirements of an “accessible, effective and enforceable” remedy to the victims concerning their credible allegation of enforced disappearance.152 Similarly, in the case of Djebrouni v. Algeria, the hrc focused on the measure provided in the Algerian amnesty law under which the victims could be imprisoned if they pursued legal remedies in relation to the enforced disappearances of their relatives. In such circumstances the hrc found a violation of Article 2 (3) iccpr read in conjunction with Articles 6 (right to life), 7 (prohibition of torture), 9 (right to liberty and security) and 16 (recognition before the law) iccpr.153 Accordingly, it does not appear misplaced when, in a case concerning enforced disappearance in which the issue of amnesties as such was not raised, the hrc, in finding a violation of the iccpr, relied on Article 2 (3) iccpr and urged the state “to open a proper investigation into the disappearance” and “to bring to justice those responsible for her disappearance, notwithstanding any domestic amnesty legislation to the contrary.”154 By adopting such approach in the examination of individual complaints, the hrc asserted an ex officio authority to preventively react to instances where amnesties may arise as a possible course of action of the domestic authorities. 2.1.2.2 Sanctions and Sentence-Execution Practices As a general rule under the iccpr, cases involving serious human rights violations, such as enforced disappearances, torture or extrajudicial executions, require remedies in the criminal-law sphere.155 This is often seen as representing a step forward in shaping the general duty of the state to effectively respond to such occurrences.156 The hrc has reaffirmed this principle in the Bautista de Arellana v. Colombia case concerning the enforced disappearance and subsequent killing of an individual. The hrc rejected the possibility that disciplinary sanctions or 152 Ibid., paras. 9.1 and 9.9. 153 hrc (Views) Djebrouni v. Algeria, no. 1781/08, 31 October 2011, para. 8.10. 154 hrc (Views) Laureano Atachahua v. Peru, no. 540/93, 15 March 1996, para 10. 155 Aldana-Pindell, supra n. 1.72, p. 1416. 156 Nowak, supra n. 3.137, p. 66.

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monetary damages claimed through the administrative jurisdiction could “be deemed to constitute adequate and effective remedies within the meaning of article 2, paragraph 3, of the Covenant, in the event of particularly serious violations of human rights, notably in the event of an alleged violation of the right to life.”157 The hrc therefore reiterated that the state was under an obligation to provide the victim’s family with an adequate remedy which should, in the circumstances of a deprivation of life, include damages, protection and the guarantee of non-repetition, as well as prompt prosecution and conviction of those responsible for the victim’s death.158 Similarly, in another case, a removal of the suspect from a military post, suggested by the Government as an effective remedy to the families of abducted and killed indigenous leaders in Colombia, was rejected by the hrc using the same wording as in the Bautista de Arellana case, and the state was urged to conduct an investigation and bring to trial those responsible for the offences at issue.159 The hrc has further considered, in the case of Sanjeevan v. Sri Lanka, concerning death in police custody, that disciplinary action could not substitute criminal investigation and prosecution, and that the decision not to prosecute in favour of the disciplinary proceedings was arbitrary and amounted to denial of justice.160 The hrc has also recognised that impunity may arise out of the domestic authorities’ sentence-execution practices. In the case of Kibaya v. Democratic Republic of the Congo the perpetrator of the ill-treatment by whipping was sentenced to twelve months’ imprisonment but the sentence was never enforced. The hrc denoted this sentence as “relatively light” and, leaving open the question whether such a light sentence in itself violated the domestic authorities’ obligation under the iccpr,161 it focused on the problem of non-execution of the sentence, finding in that respect a violation of Article 2 (3) in conjunction with Article 7 (prohibition of torture) iccpr.162 2.1.2.3 Operational Procedural Discretion The obligation to investigate and prosecute human rights offences under ­international human rights law consequently limits the national authorities’ 157 158 159 160

hrc (Views) Bautista de Arellana v. Colombia, no. 563/93, 27 October 1995, para. 8.2. Ibid., para. 10. hrc (Views) Arhuaco v. Colombia, no. 612/95, 29 July 1997, paras. 8.2 and 10. hrc (Views) Sathasivam and Saraswathi (on behalf of Sanjeevan) v. Sri Lanka, no. 1436/05, 8 July 2008, para. 6.4. 161 Joseph and Catan, supra n. 3.133, p. 872. 162 hrc (Views) Kibaya v. Democratic Republic of the Congo, no. 1483/06, 30 July 2009, para. 6.2.

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operational procedural discretion in the conduct of the proceedings. This can also be observed in the practice of the hrc. In the case of Kalamiotis v. Cyprus, involving alleged inadequacy of the investigation into an arguable claim of police ill-treatment, which eventually resulted in the decision not to prosecute, the hrc scrutinised the decision making process and found a violation of Article 2 (3) read in conjunction with Article 7 (prohibition of torture) iccpr. The hrc in particular observed that the case was first disposed of by an investigating magistrate without providing any relevant reasons, after which it was submitted before the misdemeanour jurisdiction where a judicial council decided not to pursue the charges any further. There was no information to the effect that any other measure, such as a disciplinary one, has been taken against the police officer. In these circumstances, the hrc stressed that the victim was not able to participate effectively in the proceedings and that the competent authorities’ decisions were based solely on the material from the preliminary informal investigation, namely the police officer’s statements. The hrc therefore, reiterating the obligation that complaints of ill-treatment must be “investigated promptly and impartially by competent authorities and that expedition and effectiveness are particularly important,” found that these standards had not been met in the case at issue.163 The hrc’s reference to disciplinary proceedings is somewhat confusing in the analysis and could perhaps suggest that pursuing that avenue could have satisfied the procedural obligation of the domestic authorities in the case of police ill-treatment whereas, as observed in the Bautista de Arellana and Sanjeevan cases, it was expressly excluded in the context of killings. Nevertheless, without an explicit enunciation of such a possibility, the reference to disciplinary proceedings should be read in the context of the overall analysis of all circumstances of the case and should not be accorded any decisive meaning. In several other cases the hrc dealt with the question of a discontinuation of criminal proceedings. Emphasising the lack of sufficient reasoning for such an operational decision, similarly as in the Kalamiotis case, the hrc found a violation of Article 2 (3) read in conjunction with Article 7 (prohibition of torture) iccpr in the case of Benitez v. Uruguay. In that case the victim, who had protested over some agricultural subsidies, was subjected to police illtreatment by beating after the arrest and to an unjustified exposure to irritant gas spray. The preliminary investigation into his allegations of ill-treatment showed some evidence supporting such claims, which led to the bringing of an indictment against the suspects in the competent criminal court. However, after the prosecutor requested a temporary stay of the proceedings to allow 163 hrc (Views) Kalamiotis v. Cyprus, no. 1486/06, 14 July 2008, para. 7.3.

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him to gather some further evidence, the competent court refused that request and dismissed the case. The hrc held that, in such circumstances, discontinuation of the proceedings without any justification prevented the victim’s access to an effective remedy and thus led to a violation of the iccpr. Just like in the Kalamiotis case, the hrc’s reasoning was based on its “well established jurisprudence” that “complaints alleging a violation of article 7 must be investigated promptly, thoroughly and impartially by the competent authorities and appropriate action must be taken against those found guilty.”164 Based on the same law qualifying the requirement for an investigation to be prompt and thorough, the hrc dealt with the question of operational decisions of the domestic authorities when asserting the duty to prosecute, and found a violation of Article 2 (3) read in conjunction with Article 7 (prohibition of torture) iccpr in the Alzery v. Sweden case, concerning the victim’s ill-treatment during his rendition to the United States and Egyptian security agents.165 In particular, during the rendition process the latter, with the acquiescence of the Swedish authorities, stripped naked the victim, subjected him to an intrusive body search and safety measures creating considerable pain, which the hrc found to be in violation of Article 7 (prohibition of torture) ­i ccpr.166 With regard to the procedural aspect, the hrc identified shortcomings with regard to the requirement of an official, prompt and thorough investigation. In particular, as to the requirement of carrying out an official ­investigation, although without expressly denoting such a requirement as official, the hrc found that the domestic authorities’ inactivity for two years, before the victim lodged a criminal complaint himself, was in itself in breach of the obligation to conduct a “prompt, independent and impartial” investigation. With regard to the thoroughness of the investigation, the hrc questioned the domestic authorities’ operational procedural decisions on how to conduct the investigation observing that the case had been dealt with by two instances, the Parliamentary Ombudsman and the prosecutorial authorities, which eventually came into a negative conflict of competences resulting in “the systemic effect” to “seriously prejudice the likelihood of undertaking effective criminal investigations.” This, in the hrc’s view, ran counter to the state’s obligation “to ensure that its investigative apparatus is organised in a manner which preserves the capacity to investigate, as far as possible, the criminal responsibility” of those responsible for ill-treatment under Article 7 iccpr.167 164 165 166 167

hrc (Views) Benitez v. Paraguay, no. 1829/08, 12–30 March 2012, paras. 7.2–7.5. hrc (Views) Alzery v. Sweden, no. 1416/05, 25 October 2006. Ibid., para. 11.6. Ibid., para. 11.7.

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This does not mean that every decision or conduct of the domestic authorities resulting in a discontinuation of the criminal investigation or proceedings would lead to a violation of the iccpr. The central question in this respect is whether the domestic authorities acted in good faith, which depends on all the circumstances of the case.168 For instance, in the Croes v. the Netherlands case, concerning police shooting during a political parade, the hrc examined the facts to establish whether the case had been examined thoroughly and whether the victim had had the possibility of review of the decision not to prosecute, which had been based on a lack of evidence. Reiterating that the states’ obligation was to “investigate in good faith” allegations of human rights violations, the hrc found no issue under the iccpr in that respect and declared the victim’s complaints inadmissible on the grounds that, in the circumstances, he should have pursued remedies before the civil courts.169 The same conclusion was reached in the I.M. v. Italy case, concerning alleged medical negligence resulting in the death of a detainee, where the criminal investigation was “proceeding normally” and thus the civil action was an appropriate remedy to be exhausted.170 Similarly, in the context of the state’s practical operational decision whom to prosecute for human rights offences committed by a prior military regime, the hrc considered that no issue arose as to the obligation to investigate and prosecute a particular suspect as long as the state recognised and condemned such violations. In particular, the hrc accepted the state’s explanation that due to the operational limitation of resources, it had to be selective in the decision whom to prosecute. Nevertheless, the hrc urged the state to continue with the investigations and the sanctioning of all those responsible for human rights offences. In these circumstances, the victim’s failure to bring civil action at the domestic level amounted to non-exhaustion of domestic remedies and thus to an inadmissible complaint.171 However, when there was a clear lead as to the possible perpetrators of human rights offences, in the particular case kidnapping and murder, the state was found to be in violation of Article 2 (3) in conjunction with Article 6 (right to life) iccpr, for failure to pursue such leads and to ascertain the responsibility of those involved in the events. In particular, although the hrc accepted that failure to institute an investigation against certain individuals for lack of evidence was justified, it stressed that by not providing reasons why these 168 169 170 171

Joseph and Catan, supra n. 3.133, p. 181. hrc (Decision) Croes v. the Netherlands, no. 164/84, 7 November 1998, para. 10. hrc (Decision) I.M. v. Italy, no. 266/87, 23 March 1989, para. 7.3. hrc (Decision) S.E. v. Argentina, no. 275/88, 26 March 1990, para. 7.3.

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i­nvestigations had not been instituted, the state was responsible for denial of justice to the victims.172 2.1.3 Particular Instances of the Duty to Investigate and Prosecute 2.1.3.1 The Right to Life The right to life under Article 6 iccpr is the supreme right, whose guarantees cannot be interpreted narrowly. The protection against arbitrary killings, expressly provided under Article 6 (1), requires, inter alia, that the states should prevent and punish deprivations of life by criminal acts. This guarantee is of particular importance in cases of enforced disappearances.173 The obligation to investigate and prosecute arises in respect of all killings.174 This in particular includes: (1) extra-judicial deprivation of life by state agents;175 (2) suspicious deaths suggesting the responsibility of state agents which had not been fully elucidated at the domestic level;176 (3) unexplained suspicious deaths in ­custody;177 and (4) killings by non-state actors.178 The obligation to investigate and prosecute these deprivations of life must be such as to secure that all credible allegations are investigated in good faith and to effectively secure that those responsible are brought to justice.179 Any impediments in that respect could lead to a violation of the victim’s right to an adequate remedy under Article 2 (3) read in conjunction with Article 6 iccpr. This is not limited only to technical procedural aspects of the case, such as the length of investigation, but can also go to the merits or the outcome of the case at the domestic level. Accordingly, in the Zhumbaeva case, the hrc found a violation of Article 2 (3) read in conjunction with Article 6 iccpr because the domestic authorities had not given sufficient reasons for their failure to obtain a detailed description of the position of the victim’s body, and on account that a reconstruction and 172 hrc (Views) Marcellana and Gumanoy v. the Philippines, no. 1509/07, 30 October 2008, paras. 7.3 and 7.4. 173 ccpr (General Comment No. 6: Article 6 – The right to life) 30 April 1982, HRI/GEN/1Rev.9 (Vol. i), paras. 1, 3 and 4. 174 Joseph and Catan, supra n. 3.133, p. 176. 175 hrc (Views) Baboeram and Others v. Suriname, nos. 146/83 and 148-154/83, 4 April 1985, para. 16. 176 hrc (Views) Herrera v. Colombia, no. 161/83, 2 November 1987, para. 10.3. 177 hrc (Views) Zhumbaeva v. Kyrgyzstan, no. 1756/08, 19 July 2011, para. 8.10; hrc (Views) Barbato v. Uruguay, no. 84/81, 21 October 1982, para. 9.2. 178 hrc (Views) Amirov v. Russian Federation, no. 1447/06, 2 April 2009, paras. 11.5–11.6. 179 hrc (Views) Zhumbaeva v. Kyrgyzstan, no. 1756/08, 19 July 2011, para. 8.6; and hrc (Views) Amirov v. Russian Federation, no. 1447/06, 2 April 2009, paras. 8.7 and 11.2.

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experiment of the killing had not been conducted, that the exact timing and sequence of events had not been established, that all relevant medical records had not been requested, that a forensic expertise had not been ordered, that it had never been established if the victim’s death was the result of torture or ill-treatment, and that one of the suspects had never been prosecuted.180 Similarly, in the Amirov case, besides relying on the length as a technical aspect of the investigation, the hrc found a violation of Article 2 (3) read in conjunction with Article 6 iccpr because the prosecuting authorities had failed to secure all relevant witness statements.181 The obligation to investigate and prosecute, under Article 2 (3) in conjunction with Article 6 iccpr, arises also in cases of serious attempts of deprivation of life, irrespective of whether the victim survived. In the case of Jiménez Vaca v. Colombia, concerning shooting and serious injury of a trade union activist, the hrc held that his complaint had to be examined under Article 6 iccpr because the state had not denied its involvement in the shooting nor had it investigated the circumstances of the case. The hrc therefore found a violation of Article 6 taken alone, and in conjunction with Article 2 (3) iccpr, and urged the state to carry out an independent inquiry into the case and to prosecute those responsible for the shooting, as well as to provide to the victim compensation and guarantees of non-recurrence.182 Similarly, in the Chongwe case, the hrc adopted the same decision with regard to the shooting by the police at the victim’s car which left him with serious injuries endangering his life.183 Article 2 (3) in conjunction with Article 6 iccpr also provides for the obligation to investigate and prosecute cases of enforced disappearances. This relates to the cases of: (1) victims who were abducted and remained unaccounted for;184 (2) confirmed deaths, irrespective of the manner in which the death had been confirmed;185 and (3) abductions and disappearances where the

180 181 182 183

hrc (Views) Zhumbaeva v. Kyrgyzstan, no. 1756/08, 19 July 2011, para. 8.10. hrc (Views) Amirov v. Russian Federation, no. 1447/06, 2 April 2009, para. 11.4. hrc (Views) Jiménez Vaca v. Colombia, no. 859/99, 25 March 2002, paras. 7.3 and 9. hrc (Views) Chongwe v. Zambia, no. 821/98, 25 October 2000, 25 October 2000, paras. 5.2 and 7. 184 hrc (Views) Mojica v. Dominican Republic, no. 449/91, 15 July 1994, paras. 5.6 and 6. 185 Joseph and Catan, supra n. 3.133, p. 183: hrc (Views) El Alwani v. Libyan Arab Jamahiriya, no. 1295/04, 11 July 2007, para. 6.8 (death confirmed by a death certificate); hrc (Views) González v. Argentina, no. 1458/06, 17 March 2011, para. 9.3 (existence of a corpse most probably of the disappeared person); hrc (views) Traoré v. Côte d’Ivoire, no. 1759/08, 31 October 2011, para. 7.7 (death confirmed by credible non-contradicted assertions).

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i­ nvolvement of the state has not been clearly confirmed.186 In these cases, the procedural obligation includes the duty to: (1) conduct a thorough and diligent investigation into the disappearance; (2) prosecute and punish those responsible; and (3) provide detailed information on the outcome of the investigation. In addition, the right to a remedy also encompasses the duty to: (1) return the remains of the disappeared person; (2) provide adequate compensation; and (3) provide guarantees of non-recurrence.187 The states are further obliged, under Article 2 (3) in conjunction with Article 6 iccpr, to investigate and, if appropriate, prosecute any deprivation of life arising out of negligence or recklessness.188 In the case of Novaković v. Serbia, concerning the allegations of death caused by medical malpractice in a state-run hospital, the hrc was unable to attribute any direct responsibility to the state for the death of the victim. However, it held that the state was under the obligation to investigate and, if appropriate, prosecute the alleged medical malpractice and to provide the victim’s family with the adequate compensation. In particular, the hrc rejected the possibility that administrative disciplinary or other remedies, other than the one in the criminal law sphere, could satisfy the state’s procedural obligation. As to the criminal law remedies, the hrc observed unexplained delays in the conduct of the investigation, the lodging of the indictment and the processing of the case before the competent court, as well as in obtaining the relevant forensic evidence. The hrc therefore found a violation of Article 2 (3) in conjunction with Article 6 iccpr.189 Commenting on the Novaković case, Sarah Joseph and Melissa Catan have concluded that the decision would not differ even if the hospital had been a privately-run health institution since in any case the state was not held responsible for the death.190 2.1.3.2 Torture and Other Forms of Ill-treatment General Comment No. 20 provides for the obligation that all those who encourage, order, tolerate or perpetrate prohibited acts of torture, cruel, inhuman and degrading treatment or punishment, contrary to Article 7 iccpr, must be held responsible. These acts, under Article 2 (3) in conjunction with Article 7 iccpr, inter alia, give rise to the procedural obligation which must be sufficiently recognised in the relevant domestic law. In particular, it must 186 187 188 189 190

hrc (Views) Bleier v. Uruguay, no. 7/30, 29 March 1982. hrc (Views) Traoré v. Côte d’Ivoire, no. 1759/08, 31 October 2011, para. 7.9. Joseph and Catan, supra n. 3.133, p. 188. hrc (Views) Novaković v. Serbia, no. 1556/07, 3 November 2010, paras. 6.3, 6.4 and 7.3. Joseph and Catan, supra n. 3.133, p. 189.

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include a possibility for the victim to lodge a complaint and such complaint must be examined promptly and impartially by the competent authorities.191 The obligation to protect and react to torture and other forms of ill-­treatment applies equally to ill-treatment by state officials and private persons.192 This could cover various possible situations in which the states’ responsibility may be engaged. The states have an obligation to protect inmates from the violence of other prisoners and prison staff, children from the violence by their teachers in private and public schools or from the violence by their parents, employees from ill-treatment by their employers in the public and private sphere, and in general any private person from the serious physical violence by others.193 The obligation to investigate and prosecute arises in particular in respect of: police violence;194 beatings in custody;195 ill-treatment after arrest;196 ill-­ treatment by prison guards;197 ill-treatment in the context of enforced disappearances;198 and ill-treatment in the context of incommunicado detentions.199 The procedural obligation in general includes the duty to: (1) investigate in good faith allegations of torture and ill-treatment, (2) secure impartiality in the investigation; (3) in so far as possible, identify all those responsible, (4) carry out the investigative and prosecuting measures promptly; and (5) secure that those responsible are adequately punished.200 2.1.3.3 Security of Person Article 9 (1) iccpr provides for two distinct aspects: liberty and security of person. While the concept of liberty guarantees protection from arbitrary a­ rrest and detention, the concept of security of person has a broader meaning. In general, the concept of security of person is intended to protect an individual from illegal or arbitrary interference with his or her personal integrity. It is essentially a human right to protection from crime, both state and private, m ­ andating

191 ccpr, supra n. 1.82, paras. 13 and 14. 192 Ibid., para. 13. 193 Nowak, supra n. 3.137, p. 183. 194 hrc (Views) Zheikov v. Russian Federation, no. 889/99, 17 March 2006, paras. 7.1 and 7.2. 195 hrc (Views) Eshonov v. Uzbekistan, no. 1225/03, 22 July 2010, para 9.8. 196 hrc (Views) Rajapakse v. Sri Lanka, no. 1250/04, 14 July 2006, para. 9.3. 197 hrc (Views) Reynolds v. Jamaica, no. 587/94, 3 April 1997, para. 12. 198 hrc (Views) Arhuaco v. Colombia, no. 612/95, 29 July 1997, paras. 8.4, 8.5 and 10. 199 hrc (Views) Mukong v. Cameroon, no. 458/91, 21 July 1994, paras. 9.4 and 11. 200 hrc (Views) Zheikov v. Russian Federation, no. 889/99, 17 March 2006, para. 7.2; hrc (Views) Eshonov v. Uzbekistan, no. 1225/03, 22 July 2010, para 9.8; hrc (Views) Rajapakse v. Sri Lanka, no. 1250/04, 14 July 2006, paras. 9.3 and 9.4.

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effective criminal-law system and sanctions for those who violate the rights of others.201 As such, it is sometimes understood as a general heading for all rights (Articles 6 to 17) iccpr guaranteeing security and inviolability of the person.202 Nevertheless, Nowak considers that it is primarily directed against interference with personal integrity by private actors.203 The applicability of this right in the case-law of the hrc has been discussed in various contexts, in particular: death threats by private parties;204 death threats by state agents;205 harassment by public officials;206 intimidation and threats by government officials;207 assassination attempts;208 and enforced disappearances.209 The landmark case in this context, shaping the principles on which the other cases were based, was the Delegado Páez v. Colombia case. The case was brought before the hrc by a high school teacher of religion and ethics who, due to some employment disputes, lodged various complaints at the domestic level against the Apostolic Prefect and the education authorities. Afterwards he received anonymous death threats urging him to withdraw his legal actions, once he was attacked and, at about the same time, one of his colleagues was killed by unknown attackers, which all made him leave the country. The hrc considered that the meaning of the concept security of person could not be confined only to the cases of deprivation of liberty. In particular, it explained: … States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons 201 J.Th. Möller and A. de Zayas, United Nations Human Rights Committee Case Law 1977–2088: A Handbook (Kehl, N.P. Engel 2009), p. 182. 202 Nowak, supra n. 3.137, p. 214. 203 Loc. cit. 204 hrc (Views) Delegado Páez v. Colombia, no. 195/85, 12 July 1990. 205 hrc (Views) Mojica v. Dominican Republic, no. 449/91, 15 July 1994. 206 hrc (Views) Jayawardena v. Sri Lanka, no. 916/00, 22 July 2002. 207 hrc (Views) Bahamonde v. Equatorial Guinea, no. 468/91, 20 October 1993. 208 hrc (Views) Jiménez Vaca v. Colombia, no. 859/99, 25 March 2002. 209 hrc (Views) Tshishimbi v. Zaire, no. 542/93, 25 March 1996.

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within its jurisdiction would render totally ineffective the guarantees of the Covenant.210 In the case at issue, the hrc found that the Colombian authorities had not taken sufficient measures to protect the victim and to investigate the threats against him. It thus found a violation of Article 9 (1) iccpr.211 Although in the Delegado Páez case, the hrc made no separate findings of a violation of Article 2 (3) iccpr in relation to the ineffectiveness of the investigation, the commentators are in agreement that the obligation to investigate properly and punish those responsible is a minimum requirement under the concept of security of person,212 which mirrors similar duties with regard to the right to life and the prohibition of torture and other forms of ill-treatment under the iccpr.213 In view of the above, it is worth noting that, for example, in the Chongwe case, the same circumstances that led to a requirement for an independent investigation and prosecution of those responsible for the attempted killing of the victim, under Article 2 (3) iccpr, were equally relevant to the victim’s right to life (Article 6 iccpr) and security of person (Article 9 (1) iccpr).214 However, it should be noted that, given that the effective investigation and prosecution are astute examples of the positive measures under the concept of protection of personal safety, failures in the investigation could lead to a direct violation of Article 9 (1) iccpr, irrespective of any further considerations under Article 2 (3) in conjunction with Article 9 (1) iccpr.215 2.1.3.4 Minority Rights In its landmark case, Poma Poma v. Peru, concerning the exploitation of natural resources, namely the allocation of water which affected the indigenous people traditionally using the water supplies at issue for their existential 210 hrc (Views) Delegado Páez v. Colombia, no. 195/85, 12 July 1990, para. 5.5. Note that the ECtHR has held that the phrase “security of person” under Article 5 echr must be understood in the context of physical liberty rather than physical safety from, for instance, the acts of violence (ECtHR (Judgment) Hajduová v. Slovakia, no. 2660/03, 30 November 2010, paras. 54–55). 211 hrc (Views) Delegado Páez v. Colombia, no. 195/85, 12 July 1990, para. 5.5. 212 Möller and de Zayas, supra n. 3.201, p. 182. 213 Joseph and Catan, supra n. 3.133, p. 343. 214 hrc (Views) Chongwe v. Zambia, no. 821/98, 25 October 2000, 25 October 2000, paras. 6 and 7. 215 hrc (Views) Jiménez Vaca v. Colombia, no. 859/99, 25 March 2002, paras. 7.1 and 7.2; hrc (Views) Tshishimbi v. Zaire, no. 542/93, 25 March 1996, paras. 5.2–5.4.

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­activities,216 the hrc dealt, inter alia, with the question of an effective remedy for criminal environmental damage harming minority rights under Article 2 (3) in conjunction with Article 27 iccpr. In the case at issue, the criminal prosecution against the company suspected of illegal exploitation of water was discontinued on the grounds of the prosecuting authorities’ lack of diligence in complying with the procedural requirements when instituting the proceedings in the competent courts. Specifically, the judicial proceedings over the allegations had not been opened because of the prosecuting authorities’ failure to submit before the competent court an official report of another state body, without which the proceedings over the alleged environmental offence could not be opened. The hrc attached weight to the fact that the state authorities were themselves obliged to submit such a report and held that their failure to do so deprived the victim of an effective remedy and thus led to a violation of Article 2 (3) in conjunction with Article 27 iccpr.217 2.2 Obligation to Investigate and Prosecute under the cat In general, the obligation to investigate and prosecute acts of ill-treatment under the cat in essence relates to the question of enforcement of the substantive provisions of that Convention. This encompasses positive actions on the part of the states parties to the cat by which they are obliged to prevent, criminalise and prosecute torture,218 and prevent and investigate torture and other forms of cruel, inhuman or degrading treatment or punishment.219 More specifically, Manfred Nowak and Elizabeth McArthur distinguish three categories of obligations of the states parties under the cat. The first category relates to the preventive obligations by which the states parties are obliged to prevent acts of torture and cruel, inhuman or degrading treatment or punishment. The second category is the right of victims to a remedy and adequate reparation for the inflicted harm; and the third category is the obligation of the use of domestic criminal law against perpetrators of torture, which encompasses criminalisation, asserting jurisdiction and prosecution of such acts.220 216 K. Göcke, “The Case of Ángela Poma Poma v. Peru before the Human Rights Committee: The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights”, 14 Max Planck Yearbook of United Nations Law (2010), pp. 337–370. 217 hrc (Views) Poma Poma v. Peru, no. 1457/06, 27 March 2009, para. 7.8. 218 Articles 2, 4 and 7(1) cat. 219 Articles 12, 13 and 16(1) cat. 220 M. Nowak and E. McArthur, The United Nations Convention against Torture: A Commentary (Oxford, Oxford University Press 2008), pp. 8–11.

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The cat differentiates torture from other forms of cruel, inhuman or degrading treatment or punishment.221 A consequential effect of this distinction could be observed in the unclear scope of preventive and ex post positive obligations of the states with regard to the acts of torture and other forms of illtreatment under the cat. Whereas the intervention in the criminal law sphere (by criminalisation, asserting jurisdiction and prosecution) is clearly mandated for the acts of torture, the wording of Article 16(1) cat, making a reference to cruel, inhuman or degrading treatment or punishment, does not specify the nature of the required prevention, nor does it envisage protection through criminalisation and criminal prosecution but rather limits the required intervention in this context only to investigation.222 The problem is further accentuated by the absence of any relevant explanations in the travaux préparatoires as to the conceptual distinction between torture and other forms of cruel, inhuman or degrading treatment or punishment, although it is clear that during the drafting procedure, the states were not able to find a consensus as to the definition of the term other forms of cruel, inhuman or degrading treatment or punishment.223 221 Under Article 1 cat torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” There is, however, no definition of the term “other forms of cruel, inhuman or degrading treatment or punishment” referred to in Article 16(1) cat, although the word “other” suggests that torture is only one form of cruel, inhuman or degrading treatment or punishment (C. ­Ingelse, The un Committee against Torture (The Hague, Kluwer Law International 2001), p. 207). 222 Article 16(1) cat reads: “1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article i, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.” 223 Ingelse, supra n. 3.221, p. 248; Nowak and McArthur, supra n. 3.220, p. 540.

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The consensus on the scope of the states’ obligations under the cat with regard to other forms of cruel, inhuman or degrading treatment or punishment is also lacking between the commentators. Chris Ingelse, referring to the studies of Maxime Tardu224 and Joseph Voyame,225 points out that the obligations provided under Article 10 (training of the law enforcement personnel), Article 11 (interrogation rules), Article 12 (investigation) and Article 13 (right to a complaint) are, based on an express wording of Article 16(1) cat, also applicable to other forms of cruel, inhuman or degrading treatment or punishment. However, he also stresses that the obligations under all other Articles of the cat, having in mind the guarantees provided under the un Declaration on Torture, and in view of the phrase “in particular” in Article 16(1) cat, are not excluded with regard to their application to other forms of cruel, inhuman or degrading treatment or punishment. For Ingelse the phrase “in particular” refers to examples rather than to an exhaustive list.226 Contrary to this, Nowak and McArthur do not find that the obligation to prevent under Article 16(1) cat includes any requirement to apply criminal law, thus excluding the obligation of criminalisation and asserting universal jurisdiction concerning the acts of cruel, inhuman or degrading treatment or punishment. However, the commentators agree that Article 16(1) cat requires an effective investigation and the right to complain as ex post measures into such acts of ill-treatment.227 The ComAT dealt with the question of the scope of Article 16(1) cat in the case of Hajrizi Dzemajl and Others v. Yugoslavia concerning a violent rampage of a group of private individuals on a Roma settlement in Montenegro during which the majority of residents had to evacuate the settlement, whereas several of them, who were at first hidden in the cellar during the demolition of their settlement by the crowd, eventually managed to escape. The event took place with the knowledge and in the presence of the local police forces which failed to intervene. The complainants brought their complaints, inter alia, under A ­ rticle 14 cat, providing for the right to redress, but not expressly referred to under Article 16(1) cat in the context of other forms of cruel, inhuman or degrading treatment or punishment. The ComAT, after having found 224 M.E. Tardu, “The United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”, International Geneva Yearbook (1988), pp. 13–21. 225 J. Voyame, “Das UNO-Übereinkommen gegen Folter und andere grausame, unmenschliche oder erniedrigende Behandlung oder Strafe”, in F. Matscher (ed.), Folterverbot sowie Religions – und Gewissensfreiheit im Rechtsvergleich (Kehl, Engel Verlag 1990), pp. 109–117. 226 Ingelse, supra n. 3.221, p. 248. 227 Nowak and McArthur, supra n. 3.220, pp. 571–572.

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that ­Article 16(1) cat is applicable in the circumstances of the case, concluded the following: Concerning the alleged violation of article 14 of the Convention, the Committee notes that the scope of application of the said provision only refers to torture in the sense of article 1 of the Convention and does not cover other forms of ill-treatment. Moreover, article 16, paragraph 1, of the Convention while specifically referring to articles 10, 11, 12, and 13, does not mention article 14 of the Convention. Nevertheless, article 14 of the Convention does not mean that the State party is not obliged to grant redress and fair and adequate compensation to the victim of an act in breach of article 16 of the Convention. The positive obligations that flow from the first sentence of article 16 of the Convention include an obligation to grant redress and compensate the victims of an act in breach of that provision. The Committee is therefore of the view that the State party has failed to observe its obligations under article 16 of the Convention by failing to enable the complainants to obtain redress and to provide them with fair and adequate compensation.228 In their analysis of Hajrizi Dzemajl and Others, Nowak and McArthur point out that the ComAT, irrespective of the above reasoning, did not find a violation of Article 16(1) in conjunction with Article 14 (right to redress) cat, although it did find violations of Articles 16(1), 12 and 13 (obligation of investigation and the tight to complain) cat. They do not therefore find this case-law as suggesting that all other provisions of cat are applicable to cruel, inhuman or degrading treatment or punishment under Article 16(1) cat, although it shows that the ComAT construed positive obligations under the concept of prevention provided in Article 16(1) cat.229 Without intending to dwell on the problem raised by the two scholarly positions, it should be noted that, from the perspective of the obligation to investigate and prosecute human rights offences, the proposition put forward by Nowak and McArthur would suggest that there is an obligation to investigate an act of cruel, inhuman or degrading treatment or punishment but that there is no obligation to prosecute and bring to justice those responsible, because that is not provided in Articles 12 and 13 cat but rather in Article 7 and, to an extent, Article 14 cat. However, the latter provisions are not referred to in 228 ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.6. 229 Nowak and McArthur, supra n. 3.220, p. 571.

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the second sentence of Article 16(1) cat and, as Nowak and McArthur have argued, the criminal-law mechanisms are excluded as preventive measures, within the meaning of the first sentence of that provision.230 This would, however, suggest that in the case of cruel, inhuman or degrading treatment or punishment, an investigation, as an ex post procedural intervention, would not be a means to an end but an end in itself. If that were the case, then it is unclear what effects such an investigation would produce. Moreover, as this obligation would have to be implemented within the relevant domestic criminal or, in some instances, administrative procedure, from the perspective of criminal law, or administrative law as the case might be, it is impossible for an investigation which produces sufficient evidence of cruel, inhuman or degrading treatment or punishment to remain without any further action in the competent courts.231 This also follows from the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment232 which define one of the purposes of effective investigation and documentation of torture as “facilitation of prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible and demonstration of the need for full reparation and redress from the State.”233 Morover, as emphasised by the coe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter: “the cpt”): It is axiomatic that no matter how effective an investigation may be, it will be of little avail if the sanctions imposed for ill-treatment are inadequate. When ill-treatment has been proven, the imposition of a suitable penalty should follow. This will have a very strong dissuasive effect. Conversely, the imposition of light sentences can only engender a climate of impunity.234 The ambiguity of the scope of guarantees under Articles 12 and 13 cat does indeed, as Ingelse submits, suggest that the distinction made under the cat 230 Loc. cit. 231 ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.4. 232 The Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, annexed to the un General Assembly resolution 55/89 of 4 December 2000 and to the un Commission on Human Rights resolution 2000/43 of 20 April 2000 (hereinafter: the “Torture Investigation Principles”). 233 Ibid., para. 1(c). 234 General Report, CPT/Inf (2004) 28, 21 September 2004, para. 41.

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with regard to the scope of obligations concerning torture, on the one hand, and other forms of cruel, inhuman or degrading treatment or punishment, on the other hand, is somewhat artificial.235 More importantly, it yet again shows certain misunderstanding of the central conceptual facets of criminal procedure when imposing standards in international human rights law. Unlike the un Declaration on torture, the cat covers wider area of correlation between the government and the acts of torture, sufficient for attracting its applicability. It refers not only to torture by or at the instigation of a public official236 but also to such acts of torture performed with the consent or acquiescence of a public official or other person acting in an official capacity.237 The responsibility of the state lies in the fact that it “endorses or acquiesces to” acts of torture irrespective of the formal relationship between the state and the perpetrator of torture. Ingelse explains that the requisite relationship between the government and the act of torture is particularly contained in the term acquiescence, which opens a broad area of the operation of the cat, covering not only the acts of torture by state officials but also by private persons.238 The terms consent or acquiescence could have various interpretations. They could be understood as requiring that the public official, before the acts of torture have taken place, has awareness of such activity but nevertheless fails to intervene and to prevent it. It could also be a case of the use of torture in interrogations by private contractors, of which the state authorities are aware or ought to be aware. Nevertheless, Nowak and McArthur consider that these requirements should be kept within reasonable boundaries and should not be automatically compared to some other concepts of international human rights law, such as the test of due diligence developed by the IACtHR.239 However, for Nowak and McArthur the term “other person acting in an official capacity” clearly goes beyond the state officials and intends to cover de facto authorities which could, in the circumstances, be comparable to governmental authority.240 This was confirmed in the practice of the ComAT, which, in the case where a risk of torture followed from the expulsion of the ­complainant to a country where he risked being tortured by the members of a concurrent de facto ruling clan, rejected the respondent government’s a­ rguments that 235 Ingelse, supra n. 3.221, p. 248. 236 Article 1 of the un Declaration on Torture. 237 Article 1(1) cat. 238 Ingelse, supra n. 3.221, p. 210. 239 Nowak and McArthur, supra n. 3.220, p. 78. See further: L. McGregor, “Applying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human B ­ eings”, 36 Human Rights Quarterly (2014), pp. 210–241. 240 Loc. cit.

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such a situation fell outside of the scope of the cat. The ComAT stressed that the overall situation in the country of reception suggested that the menacing clan exercised prerogatives comparable to those of a normal legitimate governments and that thus the cat was applicable under the heading of “public official or other person acting in an official capacity.”241 Similarly, the Hajrizi Dzemajl and Others case shows that cruel, inhuman and degrading treatment and punishment by private parties could attract the state’s responsibility under the cat. The responsibility again lies in the acquiescence of the state authorities and their failure to react appropriately to information of the immediate risk that the complainants were facing.242 The circumstances of that case, namely the fact that the police were present at the scene without intervening, in Nowak’s and McArthur’s view, could be in fact considered as consent and instigation.243 In view of the above differentiation between torture on the one hand and cruel, inhuman and degrading treatment and punishment on the other, as well as the differences in manner of asserting the applicability of the cat for the acts of private parties, the particular content of the obligation to investigate and prosecute human rights offences under that Convention can be further examined from three perspectives: (1) duty to prosecute; (2) duty to investigate; and (3) duty to redress. 2.2.1 Duty to Prosecute The obligation to prosecute torture forms part of the wider concept of criminal enforcement under the cat. It is expressly provided under Article 7 cat, which Ingelse considers to be a key aspect to that Convention.244 The obligation to prosecute torture under Article 7 cat, as an element of criminal enforcement, must be read in conjunction with other obligations under that Convention, namely the obligation to criminalise under Article 4 cat;245 the obligation to

241 ComAT (Views) Sadiq Shek Elmi v. Australia, 14 May 1999, para. 6.5. 242 ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.3. 243 Nowak and McArthur, supra n. 3.220, pp. 568–569. 244 Ingelse, supra n. 3.221, p. 318. 245 See further: A. Marchesi, “Implementing the un Convention Definition of Torture in National Criminal Law (with Reference to the Special Case of Italy)”, 6 Journal of International Criminal Justice (2008), pp. 196–201; E. Delaplace and M. Pollard, “Torture prevention in practice”, 16(3) Torture (2006), pp. 227–229; N. Rodley and M. Pollard, ­“Criminalisation of torture: State obligations under the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”, 2 European Human Rights Law Review (2006), pp. 118–129.

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assert jurisdiction under Article 5 cat; the obligation to investigate torture under Article 6 cat, and the obligation to prosecute torture under Article 7 (exercising criminal jurisdiction); as well as the obligation of international cooperation with other jurisdictions under Articles 8 and 9 cat.246 2.2.1.1 Asserting Criminal Jurisdiction A reading of the states’ obligations in asserting criminal jurisdiction under the cat suggests that Article 5, in conjunction with Articles 6 to 9 cat, requires the states to secure the necessary legislative measures to establish jurisdiction (legislative jurisdiction), and to secure exercise of such jurisdiction by ensuring the relevant administrative and judicial competence and compliance with the law (judicial and enforcement jurisdiction).247 Under Article 5(1)(a) cat the states are obliged to establish criminal jurisdiction based on the territoriality principle and the flag principle (offences committed in any territory under its jurisdiction or on board a ship or aircraft registered in that state) and in this respect the states do not enjoy any discretionary powers.248 Through such formulation of the territoriality principle, the cat gives wider content to the concept of territoriality covering “any territory” under the jurisdiction of the state including not only its territory in the narrow sense but also any other areas under its de facto control, as well as ships and aircraft flying under its flag irrespective of their precise location when the offence was committed.249 Article 5(1)(b) cat establishes criminal jurisdiction under the active personality principle (when the alleged offender is a national of the state irrespective of the territory where the torture was committed) and, similarly as with the territoriality principle, in this context the states do not have any discretion.250 This covers the acts of torture most usually committed by law enforcement or other public officials of the state (such as members of the armed forces), but also by private individuals who are nationals of the state at the i­ nstigation or with the consent or acquiescence of a public official, irrespective of the 246 Ingelse, supra n. 3.221, p. 319. 247 Nowak and McArthur, supra n. 3.220, pp. 254–255; C.A. Hubert, The right and duty of States to prosecute torture committed abroad amongst foreigners: Universal jurisdiction over torture under customary international law and the un Convention against Torture (Oslo, Institutt for Offentlig Rett 2005), p. 8. 248 Nowak and McArthur, supra n. 3.220, p. 255. 249 Ibid., p. 309. 250 Ibid., p. 255.

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­nationality of the public official concerned.251 The active personality principle applies irrespective of the change of nationality of the offender. In that case both states, the one of his or her nationality at the moment of the commission of the offence or at the moment of the prosecution, could assert their jurisdiction. This also applies to multiple nationalities.252 The passive personality principle is conceived under Article 5(1)(c) cat as a basis for asserting jurisdiction (when the victim is a national of the State). Unlike the territoriality principle and the principle of active personality, asserting jurisdiction under the passive personality principle depends on the discretionary power of the state.253 This follows from the wording of Article 5(1)(c) cat, which provides that the state shall establish its jurisdiction under the passive personality principle if the state “considers it appropriate.” Referring to that wording, in the case of Roitman Rosenmann v. Spain, after having examined the alleged lack of the state’s diligence in seeking extradition of a torture suspect and thus asserting jurisdiction under Article 5(1)(c) cat, the ComAT explained that it found “this provision to establish a discretionary faculty rather than a mandatory obligation to make, and insist upon, an extradition request.”254 However, given that the cat provides for an obligation to assert jurisdiction under the universality principle, the precise scope of the passive personality principle is of no decisive importance.255 Similarly to the active personality principle, a change of nationality could not be an impediment to asserting jurisdiction under the passive personality principle.256 The foremost complex principle for establishing the states’ criminal jurisdiction over torture is the principle of universality provided in Article 5(2) cat.257 This concept was introduced in the cat in view of the particular nature 251 Nowak and McArthur give the example of a us citizen, employee of a us private security company, who in Iraq commits an act of torture with the acquiescence of a public official, who can be a us military officer or an Iraqi police officer, where the us would be obliged to ensure the exercise of criminal jurisdiction based on the principle of active nationality (Nowak and McArthur, supra n. 3.220, p. 311). 252 Loc. cit.; Delaplace and Pollard, supra n. 3.245, p. 129. 253 Nowak and McArthur, supra n. 3.220, pp. 254–255. 254 ComAT (Decision) Riotman Rosenmann v. Spain, no. 176/2000, 30 April 2002, para. 6.7. 255 Ibid., p. 313. 256 Loc. cit. 257 This provision provides that “[e]ach State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph i of this article.”

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of the human rights offence of torture. Given that torture is always a result of the state involvement, it was considered appropriate to tackle the potential problem of impunity by providing for a possibility of universal jurisdiction over such acts, even if it meant interfering with the principle of national sovereignty in criminal prosecution.258 Moreover, as the icj has stressed, the universal jurisdiction is a necessary condition for enabling investigation and prosecution of the acts of torture. Universal jurisdiction essentially concerns the obligation to investigate and prosecute and thereby secures the achievement of the object and purpose of cat, which is “to make more effective the struggle against torture by avoiding impunity for the perpetrators of such acts.”259 Similarly to the principles of territoriality and active personality, the universal jurisdiction is an obligation rather than a discretionary faculty of the states parties to the cat.260 Asserting jurisdiction on the principle of universality under the cat is conditioned by the presence of the offender on the territory of the state and is essentially based on the concept of aut dedere aut judicare. Claire Annette ­Hubert determines the principle of universality under the cat as “conditioned universal jurisdiction.”261 Accordingly, the state has only one of two possibilities when an individual suspected of acts of torture is present on its territory. It may extradite him or her if there is a request for extradition, and if there is no such request or it decides not to extradite, it must thoroughly investigate and prosecute the offender itself.262 The obligation to prosecute in the latter case does not depend on a prior existence of a request for extradition, and it arises as an alternative to extradition only when such a request is made.263 Article 5(2) cat makes a reference to “any territory” under the jurisdiction of the state, which clearly includes all territories and areas under de facto control of the state. It is irrelevant for what reason the offender is present in the territory of the state264 or what his or her nationality is.265 According to Nowak’s and McArthur’s examination of comparative state practices, 258 Ingelse, supra n. 3.221, p. 320. 259 icj (Judgment) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, para. 74. 260 ComAT (Decision) Suleymane Guengueng and Others v. Senegal, no. 181/2001, 17 May 2006, paras. 9.5–9.6. 261 Hubert, supra n. 3.247, p. 73. 262 Nowak and McArthur, supra n. 3.220, p. 317. 263 ComAT (Decision) Suleymane Guengueng and Others v. Senegal, no. 181/2001, 17 May 2006, para. 9.7. 264 Nowak and McArthur, supra n. 3.220, p. 318. 265 Hubert, supra n. 3.247, p. 80.

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the ­offender needs to be present in the territory of the state at the time when the state establishes its universal jurisdiction, which is usually the time when the criminal proceedings are instituted and/or when certain procedural actions are taken against the offender. Universal jurisdiction should not be ­exercised in absentia. Although certain investigatory actions need to be taken, the formal criminal proceedings should be opened only in the presence of the suspect. However, once jurisdiction has been established the proceedings can be conducted in absentia if the suspect has managed to flee.266 2.2.1.2 Exercising Criminal Jurisdiction As Ingelse points out, the states parties to the cat are obliged not only to provide legislation asserting criminal jurisdiction for torture, they are also obliged to actually prosecute perpetrators in practice.267 This obligation could be construed from two Articles of that Convention: (1) Article 6 – providing for the procedural measures of securing an effective prosecution or extradition; and (2) Article 7 – establishing the aut dedere aut judicare principle. Article 6 cat essentially encompasses three procedural aspects.268 The first is related to the obligation of the territorial state to secure the presence of the suspect by taking him into custody or ensuring some other form of detention; the second is the obligation to carry out a preliminary inquiry into the facts of the case which may serve as a basis for extradition or prosecution; the third is the obligation to notify the state with the relevant interest of its decisions and intents, so as to facilitate possible extradition requests from those states.269 In particular, based on the wording of Article 6(1) cat indicating that the states shall take custodial measures only “[u]pon being satisfied, after an examination of information available to it, that the circumstances so warrant,” commentators consider that the states enjoy a wide margin of discretion in this respect.270 Furthermore, Article 6(2) cat requires the territorial state to institute preliminary inquiry into the facts of the case as soon as it has apprehended the suspect. This is a requirement to engage in all usual methods of criminal investigations such as the gathering of evidence, interrogation of suspects and witnesses, searches and seizures, and on-site inspections.271 In some 266 Nowak and McArthur, supra n. 3.220, p. 319. 267 Ingelse, supra n. 3.221, p. 327. 268 In fact, it encompasses four aspects; however, the fourth, being related to the procedural rights of the suspect, is of no interest for this study. 269 Nowak and McArthur, supra n. 3.220, p. 337. 270 Ibid., p. 340. 271 Loc. cit.

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instances, it may also extend to the questions of international ­cooperation in obtaining relevant information and evidence.272 The first sentence of paragraph 4 of Article 6 cat obliges the territorial state to immediately notify the state with a certain interest about the fact that the suspect has been taken into custody and the reasons warranting such measure. The second sentence of the same provision requires prompt information about the outcome of the preliminary inquiry under Article 6(2) cat and about the intention of the custodial state to exercise jurisdiction. The “state with a certain interest” in this context is any state that could assert jurisdiction under Article 5(1) cat. Article 7 cat raises four conceptual questions.273 The first question relates to the temporal restrictions delimiting its scope. Based on the systemic analysis of the cat, as an instrument of international law providing for substantial effects in the sphere of criminal law, Hubert concluded that Article 7 was restricted by three temporal conditions. The first condition relates to the question when the custodial state became bound by the cat; the second condition is that at the moment when the act of torture was committed the custodial state had ratified the cat or that it had exercised jurisdiction under other basis in international law; the third is that the territorial state had criminalised torture or that it had been recognised as a crime under international law at the time when it was committed.274 The second question related to the application of Article 7 cat is the matter of the relationship between the obligation to prosecute and the obligation to extradite. Several commentators are in agreement that the state’s duty to prosecute does not depend on the request to extradite, and that, even when such a request has been made, the decision which of the two actions to take is on the custodial or territorial state. There is therefore no primacy between extradition and prosecution, nor is any of the two options subsidiary to the other. The territorial state should simply opt for one of the two possibilities envisaged 272 icj (Judgment) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, para. 83. 273 Article 7 cat, in its relevant part, provides: “1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. 2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.” 274 Hubert, supra n. 3.247, p. 83.

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under the cat.275 Nevertheless, these two possibilities conceptually differ. The obligation to prosecute is an international obligation of the state, the violation of which could engage the state’s responsibility. On the other hand, extradition is an option offered to the state under the cat.276 The third conceptual question in the interpretation of Article 7 cat is whether there is an (absolute) obligation to prosecute under that provision. In other words, the question is whether there is room for prosecutorial discretion in exercising the function of criminal prosecution of torture. The ambiguity arises from the wording of paragraph 1 providing that the state must, unless it decides to extradite the offender, “submit the case to its competent authorities for the purpose of prosecution,” while paragraph 2 provides that “[the] authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” In interpreting this wording, Ingelse considers that the room for prosecutorial expediency is very restricted and, in his view, it is hard to imagine the legitimacy of a decision not to prosecute torture for reasons of expediency.277 On the other hand, Hubert submits that the exercise of prosecutorial discretion is fully left to be regulated by the states. Accordingly, no issue could arise as long as the state makes no discriminative choices between the exercise of prosecutorial discretion with regard to torture and other ordinary offences of a serious nature.278 At this point it suffices to clarify two central prepositions. First, Article 7 cat is applicable irrespective of under which jurisdictional principle the states assert their jurisdiction. In other words, the obligation to extradite or “submit the case to its competent authorities for the purpose of prosecution” equally obliges the territorial (including flag) and national state and the state establishing its jurisdiction under the universality principle.279 Secondly, the obligation to “submit the case to [the] competent authorities for the purpose of prosecution” undoubtedly encompasses the obligation to proceed with the prosecution when there is sufficient evidence against the defendant280 and to punish him or her, if proven guilty according to law.281 275 See further: Hubert, supra n. 3.247, p. 89; Nowak and McArthur, supra n. 3.220, p. 363; Ingelse, supra n. 3.221, p. 328. See also: ComAT (Decision) Suleymane Guengueng and Others v. Senegal, no. 181/2001, 17 May 2006, para. 9.7. 276 icj (Judgment) Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, para. 95. 277 Ingelse, supra n. 3.221, p. 327. 278 Hubert, supra n. 3.247, pp. 93–94. 279 Nowak and McArthur, supra n. 3.220, p. 345. 280 See further: ComAT (Decision) Suleymane Guengueng and Others v. Senegal, no. 181/2001, 17 May 2006, paras. 9.8–9.9. 281 See further: ComAT (Decision) Guridi v. Spain, no. 212/2002, 17 May 2002, para. 6.6.

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The fourth question related to the interpretation of Article 7 cat is the application of immunities in the prosecution of torture. From the analysis of comparative material in international law, Nowak and McArthur conclude that the states parties to the cat can invoke amnesties as a reason for nonprosecution of torture only in the case of the highest state officials, namely the heads of states or governments, ministers of foreign affairs and diplomats, for the purpose of exercising their official functions. This functional immunity bars prosecution only during the term of office but, as soon as that is no longer the case, it does not bar prosecution for torture committed before, during or after the official’s term in office.282 2.2.1.3 International Cooperation in Prosecution International cooperation in the prosecution of torture is secured through the mechanisms of extradition (Article 8 cat) and international judicial assistance (Article 9 cat). Articles 8 and 9 cat aim at eliminating any safe havens for the perpetrators of torture which, as Nowak and McArthur explain, can only be achieved by an obligation on the state to prosecute any suspected torturer present on any territory under its jurisdiction or by facilitating his or her extradition from the forum state to the territorial or national state.283 Nevertheless, Articles 8 and 9 cat do not impose any obligation on the states to seek extradition or, for that matter, to insist on its procurement in the event of a refusal.284 The aim of facilitating extradition from the forum state to the territorial or national state should be achieved through the mechanisms of Article 8 cat. This provision in particular envisages: (1) obligation to prescribe torture as an extraditable offence in the extradition treaties between the states parties (para. 1); (2) securing extradition through the cat when there is no other treaty authorising extradition for torture (para. 2); (3) obligation to prescribe torture as extraditable offence in the domestic law (para. 3); and (4) conceptualisation of equality in the case of an extradition request between the territoriality principle and other jurisdiction principles under Article 5(1) cat (para. 4). Article 9 cat obliges the states parties to cooperate and provide one another with extensive judicial assistance in the prosecutions of torture.285 By the express wording of paragraph 1 of that provision, this primarily relates to the supply of evidence necessary for the proceedings. In practice this is primarily 282 Nowak and McArthur, supra n. 3.220, pp. 326–327, 383. 283 Ibid., p. 369. 284 ComAT (Decision) Riotman Rosenmann v. Spain, no. 176/2000, 30 April 2002, para. 6.7. 285 Ingelse, supra n. 3.221, p. 335.

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an obligation on the territorial and national states to supply evidence to the states exercising universal jurisdiction or jurisdiction based on the passive nationality principle. If such assistance is not provided, Article 9(1) cat could be invoked in the relevant legal proceedings.286 2.2.2 Duty to Investigate Duty to investigate torture and other forms of ill-treatment is one of the positive duties under the cat, completely separate from the duty not to torture.287 This is an obligation arising under Article 12 (ex officio obligation to investigate) and Article 13 (obligation to investigate based on individual complaints), which are, by virtue of Article 16(1) cat, applicable not only to torture but also to other forms of cruel, inhuman or degrading treatment or punishment. However, an important distinction should be drawn between the duty to investigate under Articles 12 and 13 cat, and substantially the same duty under Article 6(2) cat. The latter obligation arises only in the context of the overall duty of criminal enforcement in cases of torture and as such its applicability is conditioned by the presence of the suspect on the territory of the forum state. On the other hand, the obligation to investigate under Articles 12 and 13 cat arises irrespective of the suspect’s presence on the territory of the investigating state. However, the duty to carry out investigation irrespective of the suspect’s presence, under Articles 12 and 13 cat is applicable only to the state asserting jurisdiction on the basis that the alleged ill-treatment occurred in any territory under its jurisdiction.288 The obligation to investigate under Article 12 cat is independent of the victims’ right to lodge a complaint under Article 13 cat. The former provision ­imposes an obligation on the domestic authorities to institute ex officio investigation whenever conditions for such a procedural action have been met, whereas the latter provides for a remedy to the victims of torture and other forms of ill-treatment, who may seek an investigation by means of an individual complaint. This provides the victims with a two-fold individual right. Firstly, the right to submit a complaint alleging torture and other forms of ill-treatment; and secondly, the right that the complaint be investigated promptly and impartially. In addition, the state must protect the victim who has come forward with a complaint from any form of intimidation or pressure.289 In ­essence, Article 13 286 Nowak and McArthur, supra n. 3.220, p. 388. 287 S. Joseph, K. Mitchell and L. Gyorki, Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the un Treaty Bodies (Geneva, omct 2006), p. 232. 288 ComAT (Decision) Riotman Rosenmann v. Spain, no. 176/2000, 30 April 2002, para. 6.6. 289 Ingelse, supra n. 3.221, p. 361.

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cat is aimed at “having the facts established by a competent authority,” which may be followed by a further action in the criminal and/or civil courts.290 The positions of the commentators concerning the legal nature of the duty to investigate under Articles 12 and 13 cat differ. Nowak and McArthur explain that these two provisions are central aspects of the duty to prevent torture and ill-treatment but, as such, do not form part of the criminal enforcement under the cat. The requirement of a “prompt and impartial investigation” under those two provisions could be secured through the investigations carried out by domestic human rights institutions, ombuds-institutions, detention monitoring commissions, public prosecutors and administrative agencies. In any event, the emphasis is on the substance of the monitoring jurisdiction, namely its impartiality and competence to exercise full investigative powers such as summoning witnesses, interrogating the accused officials, inspecting documentation and carrying out autopsies and forensic examinations, rather than on the formal structure of the body conducting the investigation.291 On the other hand, Ingelse examines the questions related to the effective investigation under Articles 12 and 13 cat in the context of criminal enforcement under that Convention. Moreover, he associates the issue of effective investigation with the possibility of the victim to obtain moral and material redress by the prosecution and conviction of those responsible for the acts of torture.292 Whereas there is in principle no reason to disagree with Nowak and McArthur, by relying purely on the grammatical interpretation of Articles 12 and 13 cat referring only to the “competent authorities” of the states, one should note that in the practice of the ComAT the predominant number of cases relates to the questions of effectiveness of the criminal investigations. The same goes for the cases identified in the analysis carried out by Nowak and McArthur,293 but also in the necessary competences of the monitoring jurisdictions to which they refer. The competences to summon witnesses, interrogate the accused officials, inspect the documentation and carry out autopsies and forensic examinations, are ample examples of criminal investigative actions which are secured in all domestic criminal justice system, but may be present, although not necessarily, only in the mandate of other institution such as domestic human rights institutions, ombuds-institutions, detention monitoring commissions and administrative agencies.

290 Nowak and McArthur, supra n. 3.220, p. 440. 291 Ibid., pp. 413–414, 438. 292 Ingelse, supra n. 3.221, pp. 335–336, 363. 293 Nowak and McArthur, supra n. 3.220, pp. 420–424.

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Furthermore, Articles 12 and 13 cat primarily relate to the instances of torture and only secondarily, under Article 16(1) cat, do they become relevant to other forms of ill-treatment. Adopting the view that for the human rights offence of torture, an investigation carried out by one of the above listed institutions would suffice to satisfy the duty to investigate, would mean imposing a requirement of duplication of the investigative activities because the results of such an “investigation” would risk falling foul of the formal evidentiary requirements of criminal procedure, and consequently of the obligation to prosecute under Article 7 cat. Although it could be envisaged that the evidentiary actions of other forms of inquiry-procedures satisfy the formal evidentiary requirements of a criminal trial, it appears more likely that Articles 12 and 13 cat, while leaving room for various possible procedural recourses, as a matter of effectiveness, primarily impose an obligation to institute a criminal investigation into the allegations of ill-treatment. 2.2.2.1 Instituting the Investigation As already observed above, Article 12 cat requires an ex officio investigation into the allegations of torture and other forms of ill-treatment wherever there is reasonable ground to believe that such an act has taken place. This is a duty incumbent on the domestic authorities, irrespective of the right of the victim to lodge a complaint under Article 13 cat. This marks the main difference between these two Articles, in that the cat, under Article 12, shifts the responsibility to institute an investigation from the victim to the state authorities.294 A reasonable ground to believe that an act of ill-treatment has taken place could arise from various sources irrespective of the origin of suspicion.295 In the case of Blanco Abad v. Spain, the ComAT considered that such an obligation arose from the allegations made by the victim before the competent court and her allegations made during the medical examinations.296 Similarly, such an obligation will arise when the victim reiterates his or her allegations before the trial court and takes certain actions (such as a hunger strike) in that respect.297 In the Dzemajl case, the presence of the police officers at the scene of the incidents amounting to cruel, inhuman or degrading treatment or punishment, in itself gave rise to the duty to investigate,298 whereas in the case 294 295 296 297 298

Ibid., p. 431. ComAT (Views) Blanco Abad v. Spain, no. 59/1996, 14 May 1998, para. 8.2. Ibid., para. 8.3. ComAT (Views) Thabti v. Tunisia, no. 187/2001, 14 November 2003, para. 10.5. ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.6.

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of Barakat v. Tunisia the duty to investigate arose from the allegations made by several non-governmental organisations.299 According to Ingelse, once the reasonable ground criterion has been met, the states do not have any discretionary power in deciding whether to investigate torture. Since, under Article 2(2) cat, no exceptional situation could justify torture, the states cannot avert their obligation to investigate.300 Similar to the criterion of reasonable ground, giving rise to the obligation to investigate, an individual complaint, guaranteed under Article 13 cat, has the same effect. It could therefore be argued that each alleged case of torture is a sufficient ground to institute an investigation.301 It is not necessary for the complaint to be made by way of a formal submission and it suffices that the victim has brought his or her allegations to the attention of the domestic authorities.302 Moreover, the submission of a complaint may also be implied in the actions of the victim, such as for example his or her hunger strikes and requests for a medical examination concerning the allegations of ill-­treatment.303 Special diligence is required in the protection of detainees, who must be informed about their right to complain and the applicable procedures available to them.304 One of the issues arising in the context of Article 13 cat is the possibility of the victim to pursue private prosecution against the offender. In the Dzemajl case, the ComAT found a violation of Article 13 cat because the domestic authorities, inter alia, failed to serve their decision on the discontinuation of the investigation on the victims and thus prevented them from assuming private prosecution of their case.305 The same reasons led the ComAT to find a violation of Articles 12 and 13 cat in another case on the grounds that “the failure to inform the complainant of the results of any investigation effectively prevented him from pursuing a ‘private prosecution’ of his case before a judge.”306 This position of the ComAT suggests that Article 13 cat requires not only a possibility for the victim to lodge a complaint of ill-treatment which would lead to an effective investigation, but also the right of the victim to a review 299 ComAT (Views) Barakat v. Tunisia, no. 60/1996, 10 November 1999, para. 11.4. 300 Ingelse, supra n. 3.221, p. 355. 301 Loc. cit. 302 ComAT (Views) Parot v. Spain, no. 6/1990, 2 May 1995, para. 10.4. 303 ComAT (Decision) Abdelli v. Tunisia, no. 188/2001, 14 November 2003, para. 10.7. 304 Nowak and McArthur, supra n. 3.220, p. 439. 305 ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.5. 306 ComAT (Decision) Dimitrov v. Serbia and Montenegro, no. 171/2000, 3 May 2005, para. 7.2.

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of the decision not to investigate, which, in the circumstances of the two cited cases, has the form of a private prosecution.307 2.2.2.2 Effectiveness of the Investigation Articles 12 and 13 cat make explicit reference to a “prompt and impartial” investigation, although that in itself does not exhaust the requirement of effectiveness of the investigation under that Convention. These two provisions provide similar standards concerning the effectiveness of the investigation,308 which in principle depends on the particular circumstances of a case. The requirement of a prompt investigation implies that following an arguable claim of ill-treatment, an investigation must be initiated without any delay, which essentially means within the next hours or days. This follows from the specific nature of the human rights offences at issue, which require an adequate preventive mechanism and the necessity to collect evidence before the traces of ill-treatment disappear.309 The range of time which the ComAT has found to be contrary to the requirement of promptness can, in the particular circumstances, be two weeks from the moment when the matter has been brought to the attention of the judicial authorities,310 two months following a special report alleging suspicion of torture and ten months after allegations of torture have been made by a non-governmental organisation,311 or fifteen months from the moment when the victim has made his allegations to an investigating judge until the criminal proceedings against the alleged perpetrators have been instituted.312 Impartiality, as another requirement of effectiveness of the investigation, does not necessarily require that the body conducting the investigation be independent or judicial but it must be such as to allow a serious and unbiased investigation. In practice, this means that the investigation into the allegations of ill-treatment should be entrusted to an external monitoring body without any links to the body or persons under investigation.313 The effectiveness of the investigation is closely related to its thoroughness. In the Ristić v. Yugoslavia case, the ComAT, other than the lack of promptness, 307 See further: ComAT (Decision) Dragan Dimitrijević v. Serbia and Montenegro, no. 207/2000, 24 November 2004, para. 5.4; ComAT (Decision) Danilo Dimitrijević v. Serbia and Montenegro, no. 172/2000, 16 November 2005, para. 7.3. 308 Nowak and McArthur, supra n. 3.220, p. 450. 309 Ibid., p. 434. 310 ComAT (Views) Blanco Abad v. Spain, no. 59/1996, 14 May 1998, paras. 8.4–8.5. 311 ComAT (Views) Barakat v. Tunisia, no. 60/1996, 10 November 1999, paras. 11.5–11.7 312 ComAT (Views) Halimi-Nedzibi v. Austria, no. 8/1991, 18 November 1993, para. 13.5. 313 Nowak and McArthur, supra n. 3.220, pp. 435–436.

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observed inconsistencies in the investigation, failures to conduct a proper forensic examination and to secure an effective course of the investigative process, as well as the lack of expertise of the doctors who had participated in the investigation.314 It follows that the requirement of the effectiveness of an investigation under the cat could in general be determined as a requirement for a “prompt, impartial and comprehensive” investigation.315 Useful guidelines in the interpretation of the requirement of an effective investigation are provided in the un Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter: “the Istanbul Protocol”).316 The Istanbul Protocol sets out the minimum standards for an effective investigation as a requirement that the statements of victims must be obtained; evidence, including that of a medical nature, must be recovered and preserved; witnesses must be identified and questioned; and it must be established how, when and where the alleged incidents of torture occurred as must any pattern or practice that may have brought about the torture.317 The investigation must be conducted by the investigators who must be independent of the suspected person or a state body in which they serve, and they must be competent and impartial. Furthermore, they must have a possibility to commission expert opinions, must be competent to obtain all the necessary information for the inquiry, and must have the authority to summon suspects and witnesses. They should also seek to protect the victims from any further intimidation. Moreover, the state must secure that those potentially implicated in torture or ill-treatment are removed from any position of control or power, whether direct or indirect, over complainants, witnesses or their families, as well as those conducting the investigation.318 As an exception to the investigation by independent, impartial and competent investigators, the Istanbul Protocol envisages the investigation by special commissions of inquiry. Such commissions must be established in cases of 314 ComAT (Views) Ristić v. Yugoslavia, no. 113/1998, 11 May 2001, paras. 9.3–9.7. 315 Nowak and McArthur, supra n. 3.220, p. 426. 316 Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (HR/P/PT/8/Rev.1, United Nations Publication 1999). 317 Ibid., para. 77. Note that the ECtHR very often refers to the Istanbul Protocol in its caselaw (see, for example, ECtHR (Judgment) Batı and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, para. 100; ECtHR (Judgment) Dilek Aslan v. Turkey, no. 34364/08, 20 October 2015, para. 49). 318 Istanbul Protocol, paras. 79–80.

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suspicion of the involvement in torture by public officials, including possible orders for the use of torture by ministers, ministerial aides, officers acting with the knowledge of ministers, senior officers in State ministries, senior military leaders, or in the case of a tolerance of torture by such individuals. A commission of inquiry may also be necessary where the expertise or the impartiality of the investigators is called into question. However, when a special inquiry is established the appointed investigators should have the support of adequate technical and administrative personnel, as well as access to objective, impartial legal advice to ensure that the investigation will produce admissible evidence for criminal proceedings. The investigators should also receive the full scope of the state’s resources and powers.319 2.2.3 Duty to Redress The right to redress under the cat is provided in Article 14 which, together with Article 13 cat, should be read as a basic remedy to the victims of torture and other forms of cruel, inhuman or degrading treatment or punishment. This provision in essence provides for a “procedural remedy aimed at receiving adequate reparation” which may consist, inter alia, of effective investigation, criminal prosecution and punishment of those responsible.320 Article 14 is not referred to in Article 16(1) cat as one of the provisions which are applicable to other forms of cruel, inhuman or degrading treatment or punishment. However, commentators agree that it is also applicable to such forms of ill-treatment that do not attain the severity of torture,321 and such conclusion finds support in the practice of the ComAT.322 Article 14 cat makes reference to the terms “redress, compensation and rehabilitation” as forms of reparation of the victims’ rights.323 In general, redress relates to official recognition of the harm done to the victim; compensation implies payment of a sum of money to the victim; and rehabilitation is a form of psychological and medical help.324 As Nowak and McArthur point out, the question of adequate reparation depends on the particular circumstances of 319 Ibid., paras. 85–87. 320 Nowak and McArthur, supra n. 3.220, p. 453. 321 Ibid., p. 487; Ingelse, supra n. 3.221, p. 355; Joseph, Mitchell and Gyorki, supra n. 3.287, p. 365. 322 ComAT (Views) Hajrizi Dzemajl and Others v. Yugoslavia, no. 161/2000, 21 November 2002, para. 9.6. 323 Article 14 cat, in so far as relevant, reads: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.” 324 Ingelse, supra n. 3.221, p. 362.

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each case and the particular suffering of the victim. In general, the victims of torture are primarily interested in forms of reparation other than mere pecuniary compensation. They seek to restore their own dignity and humanity and thus an effective investigation into the facts of the case may provide the best means of satisfaction.325 Criminal investigation and prosecution are relevant in the context of the right to reparation under Article 14 cat from two perspectives: the first, related to their consequential impact on the effectiveness of civil remedies; and the second, related to the reparation obtained directly through the criminal investigation and prosecution. As to the former aspect of reparation, within the meaning of Article 14 cat, the ComAT has found a violation of that provision in several cases in which the victims claimed that the failure of the state to investigate their case effectively had deprived them of the possibility to use civil remedies.326 In other cases concerning the ineffective investigation, the ComAT stressed that it was not possible to decide on the matter of adequate reparation in such circumstances, and thus it adjourned its decision under Article 14 cat and urged the state to carry out a proper investigation.327 Criminal investigation and prosecution could also be directly relevant as the mechanisms of obtaining reparation under Article 14 cat. Nowak and ­McArthur explain that the criminal prosecution of the perpetrators is perceived by the victims of torture as the most effective means of satisfaction. The gravity of such offences requires appropriate punishment of the perpetrator. In addition, according to Nowak and McArthur, criminal investigations serve the purpose of, amongst others, establishing truth.328 The landmark case essentially establishing criminal investigation and prosecution as a means of reparation to the victims was Guridi v. Spain. In that case the perpetrators of torture had been at first punished by the criminal court and the victim had been awarded full pecuniary compensation. However, the perpetrators were later pardoned and the victim claimed before the ComAT, by invoking Article 14 cat, that the pardons had been tantamount to denying 325 Nowak and McArthur, supra n. 3.220, p. 483. 326 ComAT (Decision) Dragan Dimitrijević v. Serbia and Montenegro, no. 207/2000, 24 November 2004, para. 5.5; ComAT (Decision) Dimitrov v. Serbia and Montenegro, no. 171/2000, 3  May 2005, para. 7.3; ComAT (Decision) Danilo Dimitrijević v. Serbia and Montenegro, no. 172/2000, 16 November 2005, para. 7.4. 327 ComAT (Views) Ristić v. Yugoslavia, no. 113/1998, 11 May 2001, para. 9.9; ComAT (Decision) Nikolić v. Serbia and Montenegro, 174/2000, 24 November 2005, paras. 8–9. 328 Nowak and McArthur, supra n. 3.220, p. 483.

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the fact of torture and his suffering. In finding a violation of Article 14 cat, the ComAT stressed: [A]rticle 14 of the Convention not only recognizes the right to fair and adequate compensation but also imposes on States the duty to guarantee compensation for the victim of an act of torture. The Committee considers that compensation should cover all the damages suffered by the victim, which includes, among other measures, restitution, compensation, and rehabilitation of the victim, as well as measures to guarantee the non-repetition of the violations, always bearing in mind the circumstances of each case. The Committee concludes that there has been a violation of article 14, paragraph 1, of the Convention.329 In the context of remedies secured through the criminal law mechanisms, Ingelse construed the idea of the “right of individuals to the prosecution of perpetrators” as an implicit concept of Article 14 cat. He explained that there was a clear connection between the prosecution and redress in that the full redress could not be achieved as long as the perpetrators were free, and also because practice has shown that the possibility of obtaining redress has depended on the effectiveness of the investigation. In Ingelse’s view, there was a possibility that Articles 7 and 13 cat also envisaged a complaint in the event of a failure to prosecute, but that had not been clearly set out in that Convention. Given that Article 13 did not make any explicit reference to prosecution, it was difficult to construe the idea of an individual right to prosecution. However, the concept of redress under Article 14 cat clearly encompassed the requirement for prosecution and thereby secured the rights of those complaining about non-prosecution. It also followed from the very object and purpose of Articles 7 and 13 cat, which had to be read in conjunction with Article 14 cat. The state that failed to investigate torture and allowed the perpetrators to remain unpunished, could not be seen as having complied with its obligation under Article 14 cat to support victims in obtaining redress.330 2.3 Obligation to Investigate and Prosecute under the ced The ced brought two crucial achievements in furthering protection from acts of enforced disappearances.331 The first is the introduction of the right not to

329 ComAT (Decision) Guridi v. Spain, no. 212/2002, 17 May 2002, para. 6.8. 330 Ingelse, supra n. 3.221, pp. 365 and 376. 331 Pervou, supra n. 3.25, p. 129.

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be subjected to enforced disappearance,332 and the second is the definition of the term enforced disappearance.333 This Convention essentially recognises that, although the individual elements of the concept of enforced disappearance have already been accounted for in international human rights law through the protection of the right to life, the prohibition of torture or arbitrary deprivations of liberty,334 this concept represents more than that; it is a specific and comprehensive occurrence negating the respect for human rights which should be as such established in law. In principle, it is a governmental practice which can be the result of a systemic policy (administrative practice) or it can be an occasional activity in suppressing opposition,335 and as such it could aim at different social categories of victims, of which children336 and pregnant women337 are of the ced’s particular concern.338 In these circumstances, by providing the conceptual framework for the protection against the activities of enforced disappearances, the ced filled in the existing gap in international human rights law.339 An element of ambiguity in the scope of protection under the ced relates to the question of its applicability to the acts of enforced disappearances by private parties. The general approach, relying on the traditional concept of the states’ responsibility in international law, classifies the acts of enforced disappearances as a direct or complicit crime of the state and nobody else.340 To an extent this finds its support in the wording of Article 2 ced which refers 332 Article 1 ced. 333 Article 2 ced defines “enforced disappearance” as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. 334 See further: C. Ophelia, “Comparative Approach to Enforced Disappearances in the InterAmerican Court of Human Rights and the European Court of Human Rights Jurisprudence”, 5 Intercultural Human Rights Law Review (2010), pp. 407–462. 335 B. Taxil, “À la confluence des droits : la Convention internationale pour la protection de toutes les personnes contre les disparitions forcées”, 53 Annuaire français de droit international (2007), p. 129. 336 Article 25 ced. 337 Article 2(b) ced. 338 See for the contextual aspect: Lippman, supra n. 3.24, p. 132. 339 C. Callejon, “Une immense lacune du droit international comblée avec le nouvel instrument des Nations Unies pour la protection de toutes les personnes contre les disparitions forcées”, 66 Revue trimestrielle des droits de l’homme (2006), p. 340. 340 Taxil, supra n. 3.335, p. 136.

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to the acts of “agents of the State or by persons or groups of persons acting with [its] authorization, support or acquiescence.” If this is to be compared with the similar discussion concerning the acts of torture and cruel, inhuman and degrading treatment and punishment under the cat,341 than it would already at this point appear that Article 2 encompasses the conduct of private parties under the heading of “acquiescence” by the state. Bérangère Taxil considers that this problem should also be viewed in the context of international criminal law and international humanitarian law, forming part of the general framework on the problem of enforced disappearances,342 which envisage the possibility of individual responsibility of private parties without any involvement of the state. However, for him, the question is more of a conceptual nature, and although it has some bearing on the interpretation of the states’ responsibility, it does not affect the rights of the victims. This follows from the requirement of Article 3 ced providing for an obligation on the states to investigate and prosecute acts of enforced disappearances “committed by persons or groups of persons acting without the authorization, support or acquiescence of the State.” Taxil thus emphasises the need to distinguish between the definition and its implementation in establishing the responsibility.343 In other words, although it could be understood that the ced does not require criminalisation of enforced disappearances committed by private parties,344 it is not clear how the investigation and prosecution of the private parties for such acts, as required under Article 3 ced, could be achieved if the acts are not previously criminalised.345 This ambiguity should thus be understood not as a possibility of the states to exclude the acts of private parties from their criminal jurisdictions but as a political drafting compromise with a message that the states are not bound to follow the definition under Article 2 ced strictly in their criminal laws as regards the acts of private parties, although they are obliged to criminalise such acts by providing definitions that make a clear distinction between the acts of enforced disappearances and other offences such as abduction or kidnapping.346 341 Loc. cit. 342 Preamble to the ced. 343 Taxil, supra n. 3.335, pp. 136–137. 344 Articles 2 and 4 ced. 345 S. McCrory, “The International Convention for the Protection of all Persons from Enforced Disappearance”, 7(3) Human Rights Law Review (2007), p. 551. 346 G. Citroni, “La position des états”, in E. Decaux and O. de Frouville (eds.), La Convention pour la protection de toutes les personnes contre les disparitions forcées (Brussels, Bruylant 2009), pp. 80–81.

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Nevertheless, some authors consider that there are differences f­ ollowing from the two divergent regimes with regard to the scope of the states’ obligations towards the victims. According to this approach, if there is no link between the state and the perpetrator of the offence, the state would not consider itself equally bound to compensate the victim as it would where such a link exists. The states would also have more difficulties to effectively prosecute non-state actors residing outside their territories, particularly given that the requirements of international cooperation under Articles 14 and 15 ced are limited to the definition of enforced disappearance under Article 2 ced, and moreover, an issue could arise as to the designation of such an offence committed by a private party as a political offence impeding extradition.347 In the context of the protection from enforced disappearances, criminal law mechanisms play an essential role of ensuring that the rights under the ced are enforced at the level of national jurisdictions.348 They form an essential part of the central obligations of the states parties under the ced,349 and consequently determine the structure of the relevant obligations under that Convention. In general, the structure of the ced is based on three types of obligations: protection, prevention and repression. In the context of the protection and prevention, at the ex post level,350 this structure follows from three fundamental concepts of rights under the ced: (1) the right to truth, (2) the right to access to justice; and (3) the right to reparation.351 Prevention is secured through the right to truth and the related obligation to investigate; whereas the access to justice implies the right to a remedy and the right to reparation. Repression is secured through the obligation to punish, which encompasses criminalisation of enforced disappearances and effective criminal investigation and prosecution of such offences.352

347 A. Vranckx, A long road towards universal protection against enforced disappearance ­(Website International Humanitarian Law 2006), p. 11. 348 McCrory, supra n. 3.345, p. 550. 349 K. Vibhute, “The 2007 International Convention against Enforced Disappearance: Some Reflections”, 2(2) Mizan Law Review (2008), pp. 303–304. 350 Taxil determines it as “secondary rights of the victim’s next-of-kin” (Taxil, supra n. 3.335, p. 134). 351 Preamble to the ced. 352 Taxil, supra n. 3.335, pp. 134, 138–139, and 144.

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2.3.1 The ex post Aspects of Protection: The Right to Truth and the Obligation to Investigate Commentators have argued that conceptually there is an inextricable link between the right to truth, the obligation to investigate, and the obligation to effectively prosecute enforced disappearances. From this perspective, the truth commissions, prosecutions and reparations are only different complementary aspects of the same idea of combat against impunity.353 This is particularly true of the commissions of inquiry which, inter alia, facilitate the preservation of evidence for the courts and punishment of the offenders, but also secure the right to knowledge.354 At the same time, these different types of obligations should not be seen as alternatives, in that securing one satisfies the others. The duty to prosecute, for instance, cannot relieve the states from their independent obligations of reparations, the right to know the truth and guarantees of non-recurrence of violations.355 In the context of the present discussion these considerations require that the right to know the truth be examined complementary with the obligation to investigate.356 2.3.1.1 The Right to Truth There are two aspects to the right to truth: individual and collective. Individual right to truth is the victims’ right to know what happened in a particular case, whereas the collective right to truth is a corollary of the duty to remember, which is aimed at the prevention of the perversions of history, and combat against revisionism and negationism.357 As discussed earlier in this study, when viewed from the perspective of criminal law, any such conception implicating the obligation to establish truth should be observed with the necessary circumspection. The individual right to truth was for the first time affirmed in Article 32 of the Additional Protocol i to the Geneva Conventions358 as “the right of families to know the fate of their relatives.” It has thereafter received a general 353 D.F. Orentlicher, Promotion and Protection of Human Rights: Impunity (un Economic and Social Council, E/CN.4/2004/88, 27 February 2004), p. 5. 354 L. Joinet, Question of the impunity of perpetrators of human rights violations (civil and political) (un Economic and Social Council, E/CN.4/Sub.2/1997/20, 26 June 1997), p. 5. 355 Orentlicher, supra n. 3.353, p. 7. 356 Taxil, supra n. 3.335, p. 139. 357 Joinet, supra n. 3.354, p. 5. 358 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977, 1125 unts 3.

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a­ cceptance in international human rights law, although conceived differently under various international human rights law instruments.359 The ced recognises explicitly the individual right to truth under Article 24(2) as the right of the victim “to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.” Commentators have found that this marked a significant development in international human rights law, which now, based on the ced, provides for a non-derogable right to know360 basically consisting of two elements. The first is the right to know the fate of the disappeared person, which is a narrower concept as conceived under the Additional Protocol i to the Geneva Conventions; the second is the right to know all the circumstances of the enforced disappearance, which is a wider concept encompassing more than information about the fate of the disappeared person.361 2.3.1.2 Obligation to Investigate The obligation to investigate under the ced has implications for the concept of the right to truth and the concept of the right to access to justice. In the context of the right to truth, the obligation to investigate has two central aims: first, to dismantle the administrative practices of human rights violations and thus prevent their recurrence; and second, to preserve evidence for the judiciary and restore respect for the oppressed human rights advocates.362 In the context of access to justice, the obligation to investigate relates to the right of victims to a fair and effective remedy leading to the prosecution and, if appropriate, punishment of the oppressors. As such it is a corollary of the obligation of the state to investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them. At the micro-management level, although recognising that the decision to prosecute is primarily on the state, it mandates for supplementary procedural rules allowing the victims to join the prosecution as civil parties or to institute proceedings themselves, when the prosecuting authorities failed to do that.363 The former aspect of the investigation related to the right to truth is performed through various commissions of inquiry or truth commissions or 359 Orentlicher, supra n. 3.353, p. 7. 360 G. Citroni and T. Scovazzi, “Recent Developments in International Law to Combat ­Enforced Disappearances”, 3 Revista Internacional de Direito e Cidadania (2009), p. 102. 361 McCrory, supra n. 3.345, pp. 557–558. 362 Joinet, supra n. 3.354, p. 5. 363 Ibid., p. 7.

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­various other extrajudicial formations. Commentators, however, have emphasised that such commissions should not be diverted from their purpose and should not lead to furnishing a pretext for not going before the courts.364 In fact, the work of the commissions should not be understood as an alternative to the function of the judiciary in protecting human rights and should not substitute for the civil, administrative or criminal courts.365 The choice of means in securing the interests of the society and the victims to know the truth and to have an effective access to justice is on the national legal systems. This choice is limited with the principles of international human rights law and must be organised in such a way not leaving an impression that the right to truth serves as an alibi for failed prosecution processes.366 In addition, although the right to truth is argued in theory as an unconditional right, Taxil stresses that necessary consideration should be given to the question whether in a given society and in a given social context an unbending right to truth is actually the best solution.367 2.3.2 Reparative Aspects: The Right to Access to Justice Following Taxil’s structure of the ced, the reparative aspects can be viewed from two perspectives. The first is the right to a remedy provided under Article 12 ced, which in principle corresponds to the right to an individual complaint under Article 13 cat; and the second is the right to reparation provided under Article 24(4) and (5) ced, which corresponds to the right to obtain compensation under Article 14 cat.368 2.3.2.1 The Right to a Remedy The ced does not expressly provide for the right to a remedy although this right is in substance conceived under Article 12(1). It essentially consists of two elements, or the right of the victims to: (1) report the facts to the competent authorities, and (2) to have an effective procedural response to such a complaint.369 364 Ibid., p. 5. 365 Orentlicher, supra n. 3.353, p. 9. 366 G. Simpson, A Brief Evaluation of South Africa’s Truth and Reconciliation Commission: Some lessons for societies in transition (Johannesburg, Centre for the Study of Violence and Reconciliation 1998), pp. 12–16. 367 P.B. Hayner, “International Guidelines for the Creation and Operation of Truth Commissions: A Preliminary Proposal”, 59 Law and Contemporary Problems (1996), pp. 176–178. 368 Taxil, supra n. 3.335, p. 142. 369 Ibid., p. 143.

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In particular, the right to a complaint is provided to any individual who alleges that a person has been subjected to enforced disappearance. The ced thereby undoubtedly gives to a wider number of persons the possibility to attain the status of victim,370 although it opens the door for actio popularis which risks being unmanageable in securing the effective and real recognition of this right in the domestic and international practice. The effectiveness of the remedy requires that there should be an investigation into the allegations which should be thorough, prompt and impartial (Article 12(1) ced). Furthermore, the authorities conducting the investigation must secure protection to all those participating in the proceedings (Article 12(1) and (4) ced), they must have the necessary resources for the investigation and must have access to all the relevant material and places of detention (Article 12(3) ced). In addition, having in mind that the obligation of an investigation is also conceived in the context of the repressive duties of the states through the application of criminal-law mechanisms,371 the obligation to conduct an effective investigation also encompasses the duty of the state to carry out an effective investigation even in the absence of a formal complaint whenever there are reasonable grounds for believing that a person has been subjected to enforced disappearance (Article 12(2) ced). 2.3.2.2 The Right to Reparation The ced envisages two forms of reparatory remedies to the victims of enforced disappearances. The first is compensation which must be prompt, fair and adequate (Article 24(4) ced). The other forms of reparation are instances which are provided in a non-exhaustive list under Article 24(5) ced, in particular restitution; rehabilitation; satisfaction, including restoration of dignity and reputation; and guarantees of non-repetition. 2.3.3 Repression of Enforced Disappearance The concept of criminal repression of enforced disappearance encompasses the obligation to incriminate and, in its ex post aspect, the obligation to ­prosecute.372 Structurally, the latter aspect includes: (1) obligation to establish jurisdiction; (2) obligation to investigate; and (3) obligation to prosecute. In addition, the problem of impunity arises as a separate issue in this context.

370 Ibid., p. 142. 371 Ibid., p. 143; McCrory, supra n. 3.345, p. 554. 372 Taxil, supra n. 3.335, p. 145.

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2.3.3.1 Establishing Criminal Jurisdiction The rules on asserting criminal jurisdiction over acts of enforced disappearances under the ced are based on the principle of primacy of domestic ­jurisdiction.373 Article 9(1) ced mandates the states to establish criminal jurisdiction based on: (1) the variant territoriality principle (offences committed on the territory, ship or aircraft registered in the state party); (2) active personality principle; and (3) passive personality principle, but this only on the discretionary power of the state, that is, if it considers it appropriate. The primacy of national jurisdiction is based on the premise that domestic jurisdiction will be the most adapt forum to facilitate the access to evidence and that conducting prosecutions in the domestic jurisdiction will strengthen the social processes of accountability and healing. However, it is not uncommon to find unwillingness to prosecute the offences in national jurisdictions and therefore the ced envisages the principle of universal jurisdiction in ­Article 9(2).374 The exercise of universal jurisdiction will depend on the voluntary presence of the perpetrator on any territory of the state. The word voluntary, added by the commentators375 to this obligation under the ced, makes its scope similar to the one under the cat concerning the rules on establishing and exercising criminal jurisdiction. In other words, whereas the state does not have the obligation to seek extradition of an individual in order to exercise its criminal jurisdiction, it is obliged to do so when such an individual is present on any territory under its control. This is therefore conditioned universal jurisdiction. Furthermore, universal jurisdiction is based on the concept aut dedere, aut transfere, aut judicare.376 Accordingly, under Article 9(2) ced, when an offender is present on any of its territories, the state has the following possibilities: to exercise universal jurisdiction, to extradite him or her to another country which has requested the extradition, or to surrender him or her to an international tribunal whose competence it has recognised, or to surrender him or her to another country. The latter two situations cover instances of cooperation through the mechanisms of international and transnational assistance in criminal matters, primarily related to the competence of the icc and cooperation based on the European Arrest Warrant.377 This is the element which, unlike the cat, makes 373 Anderson, supra n. 3.29, p. 31. 374 Loc. cit. 375 Ibid., p. 32. 376 Taxil, supra n. 3.335, p. 148. 377 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States.

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the discretion of the state in opting for one of the alternatives conditional on the applicable rules of cooperation through such mechanisms of international and transnational cooperation.378 An important message brought by the ced concerning the concept of universal jurisdiction, amid the theoretical discussions of its nature and strength in international law, is the mandatory character of the obligation for the states to establish their criminal jurisdiction based on that principle for acts of enforced disappearances,379 which is a similar requirement already observed under the cat. 2.3.3.2 Obligation to Investigate Other than providing for rules on the obligation to investigate under Article 12 ced, which also form part of the states’ repressive duties,380 the ced in Article 10(2) requires the state on whose territory a person suspected of having committed an offence of enforced disappearance is present to take certain measures securing the effective exercise of the repressive authority. Under Article 10 ced the state, when an individual is present on its territory, and the circumstances of the case so warrant, has an obligation to apprehend him or her and to carry out a preliminary inquiry or investigation into the facts of the case. This obligation relates to the obligation to prosecute under Article 11 ced.381 The state has to inform other states which could establish their domestic jurisdiction under one of the principles provided under Article 9(1) ced (territoriality, active and passive personality), about the measures it has taken, the findings of its inquiry or investigation, and the decision whether it intends to exercise its jurisdiction. The obligation to investigate under Article 10(2) ced differs from the obligation to investigate under Article 12 ced in that the latter should be undertaken irrespective of the offender’s presence on the territory of the state at issue. Accordingly, under Article 12 ced the states are obliged to investigate any allegations of enforced disappearance but such investigation does not necessarily have to be related to the exercise of criminal jurisdiction and may be undertaken as part of facilitating the work of truth commissions or other commissions of inquiry. It is therefore wider in scope than the obligation to investigate under Article 10(2) ced, which, as observed above, depends on the ­perpetrator’s 378 O. de Frouville, “La Convention des nations unies pour la protection de toutes les personnes contre les disparitions forcées : les enjeux juridiques d’une négociation exemplaire”, 6 Droits fondamentaux (2006), pp. 51–53. 379 Anderson, supra n. 3.29, p. 32; Taxil, supra n. 3.335, p. 147. 380 McCrory, supra n. 3.345, p. 554. 381 De Frouville, supra n. 3.378, p. 53.

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presence on the state’s territory and aims at securing the possibility of exercising state’s repressive authority. 2.3.3.3 Obligation to Prosecute The duty of the state to prosecute is provided under Article 11 ced. It is based on the principle aut dedere, aut transfere, aut judicare and conceptually corresponds to the same obligation provided under the cat.382 In particular, Article 11(1) and (2) ced employs the same wording as the cat under which the state, if it does not extradite or surrender the offender, must “submit the case to its competent authorities for the purpose of prosecution” and the authorities must take their decision in the same manner as in the case of “any ordinary offence of a serious nature under the [domestic] law.” In facilitating the exercise of the criminal jurisdiction through prosecution, the ced provides for the measures of international cooperation, particularly though extradition (Article 13) and mutual legal assistance, including the supply of all evidence necessary for the proceedings (Article 14). 2.3.3.4 The Problem of Impunity The problem of impunity is related not only to political and legislative attempts to avoid criminal responsibility of those responsible, but also to the procedural sovereignty-based arguments of criminal law impeding effective criminal prosecutions. An issue arises with regard to the application of the ne bis in idem principle, refusals of extradition, or the principle of expediency in prosecutions, which conceptually contradicts the principle of obligatory prosecution envisaged under the ced.383 One of the substantive law issues identified by commentators is the question of exclusion of responsibility in the case of orders by a superior. Following the progress in international law and international criminal law, the ced expressly excludes such a possibility in Article 6(2) providing that no order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance. A further question arises with regard to the statute of limitations. The underlying idea in determining the scope of this limitation in national criminal law is related to the continuous nature of enforced disappearance, which is expressly proclaimed in Article 8(1)(b) ced. The problem effectively does not exist in so far as enforced disappearance can be designated as a crime against

382 Anderson, supra n. 3.29, p. 32; De Frouville, supra n. 3.378, p. 53. 383 Taxil, supra n. 3.335, p. 149.

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humanity384 because the inapplicability of the statute of limitations to such crimes is a well-recognised and uncontested principle of customary law.385 Conceptually, the statute of limitations under Article 8 ced is determined by the extreme seriousness of the offence of enforced disappearance and thus its duration has to be long and proportional to such acts. The duration of the statute of limitations can commence only when the offence of enforced disappearance has ceased, which, taking into account its continuous nature, may be instances when the fate of the disappeared person or his or her location have been clearly established, but it may also include various other instances in which the circumstances of the enforced disappearance have ceased.386 In any case, under Article 8(2) ced, during the term of the limitation the victim must have an effective remedy concerning his or her allegations of enforced disappearance. In the context of amnesties, the ced does not articulate any precise and express rule or principle. However, the commentators have stressed that amnesties with regard to the acts of enforced disappearances, as grave violations of human rights, have to be considered in the context of contemporary trends marked by two considerations: firstly, unconditional auto-amnesties are ousted as an acceptable practice, and secondly, total amnesties should be excluded, given that amnesties may be acceptable only if they pursue the aim of national reconciliation, on condition that they have been negotiated, that they are limited to certain offences and that the right to truth and reparation has been respected.387 3

Obligation to Investigate and Prosecute Human Rights Offences in the Mechanisms of Direct Impact

Obligation to Investigate and Prosecute under the achr Conceptualising the Obligation to Investigate and Prosecute under the achr The obligation to investigate and prosecute as a mechanism of human rights protection388 forms part of the general duties enshrined in Article 1(1) achr. 3.1 3.1.1

384 Article 5 ced; Article 7(1)(i) of the Rome Statute. 385 De Frouville, supra n. 3.378, p. 38. 386 Ibid., pp. 41–42. 387 Taxil, supra n. 3.335, p. 151. 388 See further: F. Mégret and J-P.S. Calderón, “The Move Towards a Victim-Centred Concept of Criminal Law and the ‘Criminalisation’ of Inter-American Human Rights Law. A Case

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This provision imposes substantial obligations on the states to respect the rights and freedoms recognised therein and to ensure free and full exercise of those rights and freedoms. It relates to every other provision of the achr adding a complementary violation of that treaty whenever any of those other rights or freedoms is violated.389 The double duty to respect and ensure under Article 1(1) achr entails a negative and a positive obligation. The negative obligation is conceived under the respect concept, restricting the exercise of the governmental power to the human rights requirements under the achr.390 The positive obligation, conceived under the concept of ensure, was conceptualised by the IACtHR in its landmark case of Velásquez-Rodríguez in the following terms: [The] obligation of the States Parties is to “ensure” the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.391 This essentially imposes a requirement of organisational and operational activity on the states parties to the achr. They are obliged not only to organise their administrative apparatus but also to be able to put it in motion so as to ensure effective enjoyment of rights and freedoms under the achr.392 Accordingly, the state obligations under Article 1(1) achr are much more direct that those contained in Article 2 achr mandating compliance of the domestic system with that Convention by ensuring the adoption of legislative and other provisions as may be necessary to give effect to its rights and freedoms.393



389

390 391 392 393

of Human Rights Law Devouring Itself?” in Y. Haeck, O. Ruiz-Chiriboga and C. Burbano Herrera (eds.), The Inter American Court of Human Rights: Theory and Practice, Present and Future (Mortsel, Intersentia 2015), pp. 419–441. IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, paras. 162 and 163; D.  Rodríguez-Pinzón and C. Martin, The Prohibition of Torture and Ill-treatment in the ­Inter-American Human Rights System: A Handbook for Victims and their Advocates ­(Geneva, omct 2006), p. 138. IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 165. Ibid., para. 166. Ibid., para. 167. Ibid., para. 168.

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The significance of the complex structure of Article 1(1) achr, emphasising erga omnes obligations of protection,394 for the interpretation of Article 2 achr was explained by Judge Antônio Augusto Cançado Trindade in his dissenting opinion in the case of Caballero-Delgado and Santana v. Colombia, in which the IACtHR declined to examine compliance of the domestic legislation on enforced disappearances with the achr on the grounds that it was not necessary in the circumstances to deal with that question in the reparations stage of the proceedings.395 In particular, the dissenting Judge argued that Articles 1 and 2 achr were “ineluctably intertwined.” For him, a breach of Article 2 achr always brings about a violation of Article 1(1) achr and in cases of a violation of Article 1(1) achr there is a strong presumption of non-compliance with Article 2 achr because it implies insufficiencies or lacunae in the domestic legal order as to the regulation of the conditions of the exercise of protected rights.396 This interplay between Articles 1 and 2 achr primarily underlines the preventive duties on the states by which they guarantee that the rights and freedoms under that Convention will not be unjustifiably interfered with. However, the legal, political, administrative and cultural aspects of the organisation of public protection at the same time inevitably impact the question of adequate recourse when the rights under the achr are violated, including the punishment of perpetrators and the indemnification of harm suffered by victims.397 Not only is this interplay contextually related but could also be understood as a measure securing maximum effect to the achr, which is necessary for the effective and meaningful implementation and enforcement of that Convention.398 In complying with the obligations under the concept of ensure enshrined in Article 1(1) achr, the states have a three-fold obligation, expressed by the IACtHR in the following terms: 394 A.A. Cançado Trindade, “Une ère d’avances jurisprudentielles et institutionnelles : Souvenirs de la Cour interaméricaine des droits de l’homme”, in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), pp. 30–31. 395 IACtHR (Judgment) Caballero-Delgado and Santana v. Colombia, 29 January 1997, paras. 55–57. 396 Ibid., dissenting opinion of Judge A.A. Cançado Trindade, para. 9. 397 L.J. Laplante, “Bringing Effective Remedies Home: The Inter-American Human Rights System, Reparations, and the Duty of Prevention”, 22(3) Netherlands Quarterly of Human Rights (2004), p. 359. 398 Binder, supra n. 1.6, p. 1204.

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[T]he States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.399 Diego Rodríguez-Pinzón and Claudia Martin explain that whereas the negative duty to respect obliges the states to achieve specific objectives in meeting the requirements under the substantive provisions of the achr, thereby providing for an obligation of result, the duty to ensure is a requirement of conduct mandating reasonably calculated actions on the part of the states aimed at realising a desired outcome. It is therefore an obligation of means which does not depend on the actual outcome of the action.400 In other words, it is a conductbased obligation401 requiring the states to guarantee: (1) proactive protection of rights, (2) investigation and punishment of violations, and (3) reparation of the harm caused to victims.402 The conceptualisation of the duty to investigate and prosecute in this structure of the duty to ensure under the achr directs further analysis into two directions. First, in the assessment of the conceptualisation of the states’ responsibility, and secondly, in the assessment of the particular aspects of the requirement of an investigation and punishment, and the function of these criminal-law mechanisms for reparation of the harm caused to victims. 3.1.2 The State Responsibility in Ensuring Human Rights In its landmark case of Velásquez-Rodríguez, the IACtHR determined the manner of attribution of state responsibility under the achr as follows: Article 1 (1) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party. In effect, that article charges the States Parties with the fundamental duty to respect and guarantee the rights recognized in the Convention. Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority ­constitutes

399 400 401 402

IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 166. Rodríguez-Pinzón and Martin, supra n. 3.389, pp. 138–139. Melish and Aliverti, supra n. 2.66, p. 120. D. Shelton, “The Jurisprudence of the Inter-American Court of Human Rights”, 10(1) American University International Law Review (1994), p. 359.

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an act imputable to the State, which assumes responsibility in the terms provided by the Convention.403 The IACtHR has explained the correlation between the general norms of international law concerning the attribution of state international responsibility and the provision of Article 1(1) achr by pointing out that this provision, read together with Article 2 achr, constitutes lex specialis regarding state responsibility, predetermined by the special nature of the achr as an international human rights treaty vis-à-vis general international law.404 Based on these conceptual premises, state responsibility may be engaged directly through the acts and omissions of the state organs, and it may be engaged through the state’s failure to exercise due diligence in preventing, investigating and redressing alleged violations by private parties.405 The attribution of state direct responsibility is related to any act or omission of a state organ or agent violating individual rights, irrespective of whether this was done in contravention of the domestic law or whether it represented ultra vires conduct of the organ or the agent. Moreover, it exists irrespective of whether the agent is identified since it is sufficient to demonstrate that the state supported or tolerated the impugned conduct or that it failed to take the necessary steps to identify and, where appropriate, punish the perpetrators of such violations.406 Furthermore, the state may be directly responsible not only for the actions of the state organs or state agents but also for the actions of private parties and groups acting in cooperation with or with acquiescence (direction or control) of government forces.407 The attribution of state direct responsibility does not depend on which branch or sector of the public authority is responsible for the violation of the right,408 nor does it depend on the internal hierarchal level of the state authorities.409 State responsibility for the lack of due diligence relates not only to the acts or omissions by state agents but also to the actions by private parties, “not 403 404 405 406

IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 164. IACtHR (Judgment) (The “Mapiripán Massacre”) v. Colombia, 15 September 2005, para. 107. Rodríguez-Pinzón and Martin, supra n. 3.389, p. 151. IACtHR (Judgment) Paniagua-Morales et al., (The “White Van”) v. Guatemala, 8 March 1998, para. 91. 407 IACtHR (Judgment) Blake v. Guatemala, 24 January 1998, para. 76; IACtHR (Judgment) The 19 Merchants (v. Colombia) 5 July 2004, para. 138. 408 IACtHR (Judgment) Garrido and Baigorria v. Argentina, 27 August 1998, para. 46. 409 IACtHR (Judgment) The “Mapiripán Massacre” (v. Colombia), 15 September 2005, para. 110; see further: J.M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge, Cambridge University Press 2003), pp. 219–224.

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b­ ecause of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”410 This essentially implies two aspects of responsibility: first, failure of the state to prevent the violation (substantive positive obligations); and second, failure of the state to investigate, punish and provide reparations for the violations (procedural positive obligations). In both cases state responsibility depends on the establishment of a lack of due diligence. In the substantive aspect, the lack of due diligence relates to the question of “the awareness of a situation of real and imminent danger for a specific individual or group of individuals and to the reasonable possibilities of preventing or avoiding that danger.”411 Similarly, in its procedural aspect, the question of the lack of due diligence depends on the assessment whether the requirements of serious procedural response have been met.412 In case of a positive answer, state responsibility cannot be engaged.413 3.1.3 Duty to Investigate (and Prosecute) and Punish As already observed, the duty to investigate and punish is an element of the general positive obligation to ensure under the achr. Together with the duty to repair it essentially forms part of the duty to respond appropriately. This duty exists irrespective of whether it concerns the state’s actions or omissions with regard to breaches of the achr rights since in any case the state is required to respond to such breaches diligently.414 The rationale justifying this obligation was conceived in Velásquez-Rodríguez in the following terms: If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.415 The obligation to investigate and punish could be structurally examined as a requirement of applicability of criminal law mechanisms and the question of

410 411 412 413

IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 172. IACtHR (Judgment) The Pueblo Bello Massacre (v. Colombia), 31 January 2006, para. 123. Melish and Aliverti, supra n. 2.66, p. 121. IACtHR (Judgment) Las Palmeras v. Colombia, 6 December 2001, para. 42; Pasqualucci, supra n. 844, pp. 224–227. 414 Melish and Aliverti, supra n. 2.66, p. 121. 415 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 176.

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their effectiveness in the protection of human rights. Several authors have referred to this as penalisation of the Inter-American human rights law. In particular, Ludovic Hennebel points out that this double assessment (of applicability and effectiveness) by which the IACtHR examines whether the state deployed its means of investigation and prosecution in response to serious breaches of human rights and whether their use met certain qualitative requirements suggests a dominant position of criminal law in the structure of the IACtHR case-law. Furthermore, the IACtHR imposes an obligation on the states to prosecute the perpetrators of human rights offences, who are frequently identified in its judgments, and thus it assumes certain functions of international criminal law. Similarly, in assessing the states’ responsibility under the achr, it uses certain language and logic of criminal law, which lead to the development of certain concepts such as “state crime” or “state terrorism.”416 Overall, the IACtHR contributes to the reduction of boundaries between international criminal law, applicable to the acts of individuals, and international human rights law, applicable to the acts of states.417 Similarly to these Hennebel’s remarks, Fernando Felipe Basch stresses that although the IACtHR attempted to make a distinction between international human rights law and criminal law,418 it developed a consistent body of case-law requiring the states to punish perpetrators of human rights violations, which has an impact on all member states to the achr, thereby affecting also the rights of the defendants in domestic criminal proceedings.419 3.1.3.1 Applicability of the Obligation to Investigate and Punish As a rule, the states are obliged to investigate and, if appropriate, punish the perpetrator of every situation involving a violation of the rights protected under the achr.420 This obligation exists irrespective of whether the perpetrator is a private individual, state official or other person acting as an agent of the state.421 Moreover, the obligation to punish relates not only to the direct 416 IACtHR (Judgment) Goiburú et al., v. Paraguay, 22 September 2006, dissenting opinion of Judge A.A. Cançado Trindade, paras. 9–25. 417 L. Hennebel, “La Cour interaméricaine des droits de l’homme : Entre particularisme et universalisme”, in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), pp. 84–91. 418 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 143. 419 Basch, supra n. 1.54, p. 199. 420 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 176; IACtHR (Judgment) Godínez Cruz v. Honduras, 20 January 1989, para. 187. 421 Ibid., para. 188.

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­ erpetrator but also to intellectual actors of human rights offences.422 It is also p immaterial for the applicability of the duty to investigate and punish whether the victim lodged an official complaint, as such duty must be assumed by the State as its own legal duty.423 The duty to investigate and punish in practice relates to serious and systemic violations of human rights424 such as rape,425 enforced disappearances,426 extrajudicial executions,427 illegal and arbitrary detentions,428 torture429 and gender-based violence,430 but may also relate to other less severe instances of human rights breaches such as medical negligence431 or breach of privacy rights.432 In this sense Basch points out the wording of the relevant standards in the practice of the IACtHR under which “states must prosecute and punish every violation of any right” protected by the ACtHR. This indicates a broad scope of the concept to investigate and punish, making it applicable to virtually any violation of the achr. Basch thus contends that, if this is so, then any criminal interference with, for example, private property, irrespective of whether it has been committed by state officials or by private actors, just as any fraud or robbery, or even slander, could give rise to the obligation of the state to investigate and punish such offences.433 The duty to investigate and punish, as a positive obligation under Article 1(1) achr, conceptually relates to Article 8 (right to access to justice) and Article 25 (right to a remedy) achr. The IACtHR explained this correlation in the following terms: Under the Convention, States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due 422 IAComHR (Report) Corumbiara Massacre (v. Brazil), 11 March 2004, para. 256. 423 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 177. 424 Hennebel, supra n. 3.417, p. 84. 425 IAComHR (Report) Raquel Martín de Mejía v. Peru, 1 March 1996. 426 IACtHR (Judgment) Bámaca-Velásquez v. Guatemala, 25 November 2000, para. 161. 427 IACtHR (Judgment) Gutiérrez and family v. Argentina, 25 November 2013, para. 97. 428 IACtHR (Judgment) Escué-Zapata v. Colombia, 4 July 2007, para. 87. 429 IACtHR (Judgment) García Cruz and Sánchez Silvestre v. Mexico, 26 November 2013, paras. 57 and 58. 430 IACtHR (Judgment) González et al., (“Cotton Field”) v. Mexico, 16 November 2009, paras. 245–246. 431 IACtHR (Judgment) Suárez Peralta v. Ecuador, 21 May 2013, para. 122. 432 IACtHR (Judgment) Escher et al., v. Brazil, 6 July 2009, para. 214. 433 Basch, supra n. 1.54, pp. 202 and 220.

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process of law (Art. 8 (1)), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1).434 The correlation between Articles 8 and 25 achr and the general obligations under Articles 1(1) and 2 achr have given rise to vast discussions about its content and rationale and about the substantive nature of these two provisions.435 In principle, Articles 8 and 25 achr could be understood as two normative sources of victims’ rights under the achr. Article 25 achr provides for a more general right to judicial protection as an effective remedy for human rights violations, while Article 8 achr, essentially guaranteeing the right to a fair trial, provides for specific procedural requirements in meeting the procedural justice for victims of human rights offences.436 The states’ procedural obligation of investigation and prosecution of human rights offences is in principle examined in relation to Articles 8 and 25 achr,437 although in some instances it may form part of the procedural aspect of the higher substantive provision.438 3.1.3.2 The Problem of Impunity In their due compliance with the positive obligations under the achr, the states are obliged to prosecute and punish whenever an investigation discloses a human rights offence and its perpetrator. This obligation, as the ­IACtHR stressed, is clear from Article 1(1) achr,439 and is essential in ensuring the ­protected rights and securing prevention from possible violations through ­deterrence. This obligation relates to a further principle established in the 434 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 26 June 1987, para. 91. 435 IACtHR (Judgment) Almonacid-Arellano et al., v. Chile, 26 September 2006, concurring opinion of Judge A.A. Cançado Trindade, paras. 20–25; IACtHR (Judgment) Zambrano Vélez et al., v. Ecuador, 4 July 2007, separate opinion of Judge Manuel E. Ventura-Robles. See further: L. Bourgorgue-Larsen and A. Úbeda de Torres, Les grandes décisions de la Cour interaméricaine des droits de l’homme (Brussels, Bruylant 2008), pp. 673–677. 436 Basch, supra n. 1.54, pp. 203–205; Bourgorgue-Larsen and Úbeda de Torres, supra n. 3.435, pp. 676–677. 437 IACtHR (Judgment) Ximenes-Lopes v. Brazil, 4 July 2006, para. 149; IACtHR (Judgment) Vera Vera v. Ecuador, 19 May 2011, paras. 85–86. 438 IACtHR (Judgment) Albán-Cornejo et al., v. Ecuador, 22 November 2007, paras. 43–50. See further: Kamber, supra n. 2.250. 439 IACtHR (Judgment) Villagran-Morales et al., (The “Street Children”) v. Guatemala, 19 ­November 1999, para. 225.

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case-law of the IACtHR under which the state apparatus must be organised in such a manner as to secure that the violations do not remain unpunished.440 Accordingly, any diversion from the effective prosecution or any other impediment to punishment of those responsible for serious human rights offences raises the issue of non-compliance with the achr. In this respect the IACtHR explained: [W]hen complying with its obligation to investigate and, if applicable, punish those responsible for the facts, the State must remove all the de facto and de jure obstacles, that impede the proper investigation of the events, and use all available means to expedite the investigation and the respective proceedings in order to avoid a repetition of such serious acts as those examined in the instant case. The State may not invoke any law or provision of domestic law to exempt itself from the obligation to investigate and, if applicable, punish those responsible for the acts against Saúl Cantoral-Huamaní and Consuelo García-Santa Cruz. In particular, the Court recalls that the State may not apply amnesty laws, or provisions relating to prescription, or other provisions that exclude responsibility, which prevent the investigation and punishment of those responsible.441 In view of these principles, the IACtHR has recognised amnesties as the major obstacles to full compliance with the obligation to prosecute and punish those responsible for grave breaches of human rights.442 As such, amnesties remain absolutely ruled out443 in instances of serious violations of human rights such as torture, summary, extrajudicial, or arbitrary executions, and enforced disappearance, which are all acts violating non-derogable rights recognised by international human rights law.444 This in particular relates to self-amnesty laws and general amnesties which aim at non-discriminate exoneration of state 440 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 176; Melish and Aliverti, supra n. 2.66, p. 121. 441 IACtHR (Judgment) Cantoral-Huamaní and García-Santa Cruz v. Peru, 10 July 2007, para.190. 442 Garcia-Sayán, supra n. 1.7, p. 1841. 443 K. Bonneau, “La jurisprudence innovante de la Cour interaméricaine des droits de l’homme en matiere de droit à réparation des victimes de violations des droits de l’homme”, in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), p. 373. 444 IACtHR (Judgment) Case of Barrios Altos v. Peru, 14 March 2001, para. 41.

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o­ fficials from any responsibility for violations of human rights in a particular period.445 Although in some instances amnesties may be a permissible recourse in the post-conflict transitional periods,446 the IACtHR has emphasised that amnesties cannot be applied to serious human rights violations. This equally relates to self-amnesties and any other form of amnesty leading to the impunity for serious human rights violations. This is because “the incompatibility of the amnesty laws with the [achr] in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect in what regards the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of [that] Convention.”447 Amnesties are impermissible from the perspective of three conceptual aspects under the achr. Firstly, amnesties in themselves contravene the central obligations under the achr and thus the IACtHR considers them as being ab initio without any effect.448 They also run contrary to the right to access to justice and effective legal recourse449 and impede effective reparations required under Article 63(1) achr.450 Further impermissible obstacles to prosecution and punishment of serious human rights violations leading to impunity could arise with regard to the application of the ne bis in idem principle and statutory limitation periods. The application of the ne bis in idem principle will not bar the second criminal prosecution and punishment of the perpetrator in so far as the case concerns serious human rights violations and if the ne bis in idem principle came into play as a result of a sham prosecution thus providing fictitious and fraudulent grounds for double jeopardy.451 Moreover, even in the absence of these grounds, the investigation and prosecution could be reopened in case of new facts and new evidence making it possible to ascertain those responsible for

445 L.E. Arantes Ferreira Bastos and C. Perrone-Moisés, “La poursuite des autres de graves violations des droits de l’homme et l’opposabilité des mesures nationales de clémence”, in E.L. Abdelgawad and K. Martin-Chenut (eds.), Réparer les violations graves et massives des droits de l’homme : La Cour interaméricaine, pionnière et modèle ? (Paris, Société de législation comparée 2010), p. 92; Garcia-Sayán, supra n. 1.7, p. 1841. 446 IACtHR (Judgment) The Massacres of El Mozote and Nearby Places (v. El Salvador), 25 October 2012, para. 285; Arantes Ferreira Bastos and Perrone-Moisés, supra n. 3.445, p. 99. 447 IACtHR (Judgment) Gelman v. Uruguay, 24 February 2011, para. 229. 448 IACtHR (Judgment) La Cantuta v. Peru, 29 November 2006, para. 189; see further: Binder, supra n. 1.6, p. 1212. 449 IACtHR (Judgment) Almonacid-Arellano et al., v. Chile, 26 September 2006, p. 128. 450 Pasqualucci, supra n. 3.409, p. 244. 451 IACtHR (Judgment) La Cantuta v. Peru, 29 November 2006, para. 153.

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serious human rights violations. The IACtHR conceptualised this rule in the following terms: With regard to the ne bis in idem principle, although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice. A judgment rendered in the foregoing circumstances produces an “apparent” or “fraudulent” res judicata case. On the other hand, the Court believes that if there appear new facts or evidence that make it possible to ascertain the identity of those responsible for human rights violations or for crimes against humanity, investigations can be reopened, even if the case ended in an acquittal with the authority of a final judgment, since the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle.452 The IACtHR established similar principles with regard to the application of the statute of limitations with a view to avoiding practices which essentially impede effective investigation, prosecution and punishment of those responsible for human rights offences. Recognising that “in criminal cases, the statute of limitations determines the expiry of the right to bring a criminal action due to the time elapsed, and generally limits the punitive power of the State to prosecute unlawful conduct and punish those responsible”453 the IACtHR developed three possible approaches to the problem of application of the statute of limitations. It transpires from the practice of the IACtHR that the central question in differentiating these approaches is the substantive severity of the human rights offence at issue. In case of serious human rights violations, such as torture, summary, extrajudicial, or arbitrary executions and enforced disappearances, the statute of limitations cannot impede prosecution and punishment.454 In other words, 452 IACtHR (Judgment) Almonacid-Arellano et al., v. Chile, 26 September 2006, p. 154. 453 IACtHR (Judgment) Ibsen Cárdenas and Ibsen Peña v. Bolivia, 1 September 2010, para. 207. 454 IACtHR (Judgment) Gomes Lund et al., (Guerrilha do Araguaia) v. Brazil, 24 November 2010, para. 171.

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the application of the statute of limitations is impermissible in such instances and the obligation to investigate and punish trumps any considerations involved. In the Bulacio case, involving police ill-treatment and the victim’s subsequent death, in which the criminal prosecution against the perpetrators became time-barred, the IACtHR stressed that “it is necessary for the State to continue and conclude the investigation of the facts and to punish those responsible for them.”455 The other approach can be observed in the case of Albán-Cornejo et al., concerning allegations of medical negligence, where the IACtHR found violations of Articles 8 and 25 achr in relation to Articles 4, 5(1) and 1(1) of that Convention, with regard to the lack of diligence in the conduct of the proceedings, which allowed the prosecution to become time-barred. In this case, however, the IACtHR did not consider that the burden to prove the adverse effects should be shifted to the suspected perpetrator. The reason for this is that nothing in the relevant international material supported the idea of imprescriptibility of the human rights offence at issue and that “the accused is not responsible neither of the celerity of the action of the judicial authorities in its development, nor for the lack of due diligence of the state authorities.” Moreover, “[the] burden of the delay on the administration of justice cannot be imposed over the accused in a criminal procedure, which would inevitably represent a breach of the rights of the accused in the terms of the applicable law.”456 In the third approach, the IACtHR accepts the application of the statute of limitations as a possible outcome of the case and makes no adverse findings for the respondent state, irrespective of the state’s failure to prosecute and punish. In the Escher case, concerning a violation of the rights to privacy, although the IACtHR had made an explicit order to the state to “investigate and take the necessary measures” in its judgment on the merits,457 it closed the execution of the judgment irrespective of the fact that the criminal proceedings at the domestic level had become time-barred. This difference in approach compared to that adopted in Bulacio and Albán-Cornejo, was explained with reference to the applicable substantive threshold determining the scope in which the statute of limitations could be permissible. In other words, the substantive value of the protected interest determines the scope in

455 IACtHR (Judgment) Bulacio v. Argentina, 18 September 2003, para. 121. See further: Basch, supra n. 1.54, pp. 207–210. 456 IACtHR (Judgment) Albán-Cornejo et al., v. Ecuador, 22 November 2007, paras. 110–112; see further: IACtHR (Judgment) Vera Vera v. Ecuador, 19 May 2011, paras. 99 and 117–123. 457 IACtHR (Judgment) Escher et al., v. Brazil, 6 July 2009, para. 247.

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which that interest may remain unprotected by the operation of the statute of limitations.458 3.1.3.3 The Requirement of Effectiveness Conceptually, the obligation to investigate and prosecute under the achr is a requirement of means and not of results. As long as the state’s procedural response to a human rights offence has been sufficiently diligent, its failure to identify and punish the perpetrator would not lead to a violation of the achr in this respect.459 Accordingly, the requirement of effectiveness is measured against the diligence employed by the state. This means that the state is obliged to undertake the investigation in a serious manner and not as a mere formality preordained to be ineffective and that such an investigation must be objective and official.460 Moreover, it must provide to the victims and their next-of-kin substantial possibilities of participating in the proceedings both in order to clarify the facts and punish those responsible, and to seek due reparation.461 Some authors have observed that the judicial activity of the IACtHR, influencing the relevant criminal-law standards, sometimes suggested that the concept of obligation of means could be put into doubt, as it was not the question of means but rather the question of a futile result of the investigation and prosecution that led the IACtHR to conclude that there had been a violation of the achr.462 In particular, this relates to the following passage from the “Street Children” case: If we confront the facts in this case with the foregoing, we can observe that Guatemala conducted various judicial proceedings on the facts. However, it is clear that those responsible have not been punished, because they have not been identified or penalized by judicial decisions that have been executed. This consideration alone is enough to conclude that the State has violated Article 1.1 of the Convention, since it has not punished the perpetrators of the corresponding crimes. In this respect, there is no point in discussing whether the defendants in the domestic 458 459 460 461

IACtHR (Order) Escher et al., v. Brazil, 19 June 2012, paras. 20–21. Rodríguez-Pinzón and Martin, supra n. 3.389, p. 141. IACtHR (Judgment) Godínez Cruz v. Honduras, 20 January 1989, para. 142. IACtHR (Judgment) Villagran-Morales et al., (The “Street Children”) v. Guatemala, 19 ­November 1999, para. 227. 462 K. Martins da Rosa, “La droit à la liberté et à la sûreté dans la jurisprudence interaméricaine” in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), p. 269.

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proceedings should be acquitted or not. What is important is that, independently of whether or not they were the perpetrators of the unlawful acts, the State should have identified and punished those who were responsible, and it did not do so.463 Nevertheless, this should be read in the overall context of the case in which the IACtHR found that the failure of the duty to punish related to a number of serious omissions in the investigation and judicial proceedings, which were then examined in great detail in the judgment.464 Or, as the IACtHR has explained, the obligation of means cannot be invoked to justify an investigation which is beforehand condemned to be unsuccessful. Accordingly, the investigation in its totality must be oriented toward a specific purpose, namely “the determination of the truth and the investigation, persecution, capture, trial, and if appropriate, the punishment of those responsible for the acts.”465 The question of effectiveness is a factual matter and depends on the circumstances of a particular case. It relates to the requirements of serious, impartial and effective investigation conceptualised in other international documents, such as the Investigation Manual on arbitrary and summary executions,466 and to various other procedural aspects such as promptness in the conduct of the proceedings, diligence in collecting and processing evidence, as well as other due process rights requirements.467 One of the particular aspects of the IACtHR’s case-law is that it extends the states’ procedural obligations to the requirements of effective international cooperation in the investigation and prosecution of human rights offences. The states’ responsibility may be engaged in instances in which the ineffectiveness of the investigation extends to the failure of the state to obtain the extradition of the alleged offender.468 The IACtHR has also defined the states’ duty to comply with the aut dedere aut judicare principle and to further all effective diplomatic and judicial measures securing international cooperation in criminal matters.469 463 IACtHR (Judgment) Villagran-Morales et al., (The “Street Children”) v. Guatemala, 19 ­November 1999, para. 228. 464 Ibid., paras. 229–232. 465 IACtHR (Judgment) Ibsen Cárdenas and Ibsen Peña v. Bolivia, 1 September 2010, para. 153. 466 IACtHR (Judgment) Juan Humberto Sánchez v. Honduras, 7 June 2003, para. 127. See supra 3.1.1.4. 467 See, for example, IACtHR (Judgment) Ibsen Cárdenas and Ibsen Peña v. Bolivia, 1 September 2010, paras. 154–191. 468 IACtHR (Judgment) Albán-Cornejo et al., v. Ecuador, 22 November 2007, para. 108. 469 IACtHR (Judgment) Goiburú et al., v. Paraguay, 22 September 2006, para. 166.

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3.1.4

Criminal Investigation and Prosecution as Mechanisms of Reparation Whenever there has been a violation of a right or freedom protected by the achr, the IACtHR must, under Article 63(1) achr, rule on the measures ensuring the enjoyment of the violated right or freedom. If appropriate, the ­IACtHR shall order that the consequences of the impugned situation or measure running counter to the guarantees under the achr be remedied and that fair compensation be paid to the victim. This obligation further relates to Article 1(1) achr, under which the IACtHR conceptualised reparation as one of the states’ positive obligations in ensuring the full respect for human rights.470 The structure of the reparations in the case-law of the IACtHR in general corresponds to the concept of remedies under the Victims’ Rights Guidelines.471 In this sense, reparation covers substantive and procedural aspects of appropriate measures taken in response to an actual or threatened violation. The substantive aspect refers to the pecuniary nature of the relief whereas the procedural aspect refers to the means by which the right is enforced, or by which a violation of the right is prevented or redressed.472 This wide remedial scope envisaged under the achr also corresponds to the intention of the drafters of that Convention who wanted to give to the IACtHR broad powers in granting reparations and, accordingly, it complies with the institutional structure of the achr system and the central position of the IACtHR in the enforcement of its judgments.473 Although in some instances the mere finding of a violation of a right guaranteed under the achr may constitute sufficient reparation,474 the IACtHR has determined that the most appropriate form of reparation is full restitution, consisting of restoration of the situation prior to the violation (restitutio 470 IACtHR (Judgment) Velásquez-Rodríguez v. Honduras, 29 July 1988, para. 166; Melish and Aliverti, supra n. 2.66, p. 121. 471 D. Cassel, “The Expanding Scope and Impact of Reparations Awarded by the Inter-­ American Court of Human Rights”, 27 Hastings International and Comparative Law Review (2004), p. 92. 472 Laplante, supra n. 3.397, p. 351. 473 T. Antkowiak, “Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond”, 46 Columbia Journal of Transnational Law (2008), p.  365; see further: T. Dal Maso Jardim, “Les difficultés et limites des réparations pour graves violations des droits de l’homme dans le système interaméricain”, in E.L. Abdelgawad and K. Martin-Chenut (eds.), Réparer les violations graves et massives des droits de l’homme : La Cour interaméricaine, pionnière et modèle ? (Paris, Société de législation comparée 2010), pp. 193–201. 474 IACtHR (Judgment) Cantos v. Argentina, 28 November 2002, para. 71.

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in ­integrum), reparation of the consequences of the violation and compensation of pecuniary and non-pecuniary loss or injury, including emotional harm.475 More precisely, the concept of reparation in the case-law of the ­IACtHR consists of: restitution, indemnification, rehabilitation, satisfaction and guarantees of non-repetition,476 which can be further classified as measures of pecuniary and non-pecuniary reparation.477 The obligation to effectively investigate, prosecute and punish forms part of the general concept of reparation under the achr,478 referring primarily to its two aspects: restitution and satisfaction. 3.1.4.1 Restitution through Investigation and Punishment The concept of restitutio in integrum is the guiding principle in deciding reparations. It primarily aims at restoring or re-establishing the relevant social situation to what it was before the commission of the violation, or, if that is not possible, to compensating the victims through the payment of damages. In other words, it seeks to wipe out all consequences of the unlawful act. Having in mind this conceptualisation of restitution, some authors have pointed out its almost superfluous nature in the overall structure of reparations, since there are more instances where restitution of the situation is impossible to achieve. This in particular holds true for grave violations of human rights, such as extra-judicial killings or torture where indeed the victim could not be unkilled or un-tortured.479 This limited practical scope of restitution as a form of reparation and the necessity for its assessment within the overall concept of reparations was also recognised by the IACtHR, which noted that in certain cases restuitutio in integrum as a form of reparation may not be possible, or may not be sufficient or appropriate.480 The obligation to investigate and punish in the context of restitution appears within the concept of unacceptability of amnesties for grave breaches of human rights. As a consequence, the required abolition of amnesties, as a form of restitution, naturally relates to the effective investigation, prosecution and punishment of such grave breaches of human rights.481 475 IACtHR (Judgment) Godínez Cruz v. Honduras, 21 July 1989, para. 24. 476 Bonneau, supra n. 3.443, p. 358. 477 Rodríguez-Pinzón and Martin, supra n. 3.389, pp. 146–147. 478 Pasqualucci, supra n. 3.409, p. 242. 479 Laplante, supra n. 3.397, p. 352; IACtHR (Judgment) Bámaca-Velásquez v. Guatemala, 22 February 2002, concurring opinion of Judge S. García Ramírez. 480 IACtHR (Judgment) Aloeboetoe et al., v. Suriname, 10 September 1993, para. 49. 481 IACtHR (Judgment) Almonacid-Arellano et al., v. Chile, 26 September 2006, paras. 144–145.

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3.1.4.2 Satisfaction through Investigation and Punishment The concept of satisfaction represents non-pecuniary measures of reparation, which commonly relate to broader social, in principle legislative, guarantees of non-repetition,482 and together with them forms a remedial concept of subsidiary and accessory nature. This means that satisfaction does not exist as an isolated form of reparation, as it is not in itself capable of repairing the overall consequences of a violation. It could thus be determined as “other form of reparation” which, according to the commentators, comes into play after the exhaustion of other superior forms of reparation, namely restitution and indemnification.483 The particular relevance of the measures of satisfaction lies in their collective character which is usually commensurate with the gravity of the facts and the nature of the damage caused. As such, the measures of satisfaction have important public repercussions and surpass the scope of mere pecuniary and non-pecuniary measures of reparation.484 The obligation to investigate, ­prosecute and punish human rights violations is an ample example of the effective measures of satisfaction. There are two integral parts of this form of reparation: the right to truth and the right to justice.485 The right to truth, in the IACtHR case-law, relates to the question of the duty to investigate and prosecute. Consequently, the effectiveness of an investigation and prosecution is determined by the extent to which the requirements of the right to truth have been complied with.486 The right to access to justice relates to the victims’ right to have the circumstances of the violation of their human rights investigated and, if appropriate, prosecuted and punished. It thus encompasses more than the mere duty of inquiry into the facts of the case. Indeed, in the enforcement of the judgment in Garrido and Baigorria case487 the IAComHR argued that an essential element in the obligations of the State in matters of reparation is

482 See further: H. Tigroudja, “La satisfaction et les garanties de non-répétition de l’illicite dans le contentieux interaméricain des droits de l’homme”, in L. Hennebel and H. Tigroudja (eds.), Le particularisme interaméricain des droits de l’homme (Paris, Pedone 2009), pp. 76–77; H.S. Galván Puente, “Legislative measures as guarantees of non-repetition: a reality in the Inter-American Court, and a possible solution for the European Court”, 49 Revista Instituto Interamericano de Derechos Humanos (2009), pp. 79–84. 483 Tigroudja, supra n. 3.482, pp. 69–71. 484 IACtHR (Judgment) The Plan de Sánchez Massacre (v. Guatemala), 19 November 2004, para. 93. 485 Bonneau, supra n. 3.443, p. 370. 486 IACtHR (Judgment) Trujillo-Oroza v. Bolivia, 27 February 2002, para. 109. 487 IACtHR (Judgment) Garrido and Baigorria v. Argentina, 2 February 1996.

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the punishment of those responsible.488 The IACtHR accepted this argument emphasising that if a violation of human rights remained unpunished, the victim’s full enjoyment of rights would not be restored, which would run counter to the state’s obligation to ensure an effective exercise of rights to those under its jurisdiction.489 In the case of grave breaches of human rights, the right to access to justice represents the mandatory form of reparation from which no diversion is permissible. This right is interrelated with individual and collective aspects which, in the context of the relevant considerations, cannot be dissociated and must be considered as a whole.490 This interrelation between private and public considerations in the obligation to investigate, prosecute and punish was further conceptualised within the general concept of reparation under Article 63(1) achr. The IACtHR explained that this provision aims at erasing the consequences that an unlawful act may have had for the affected person. Given that it is intended to give effect to the reparations of personal situation, an individual can waive that right and no issue should arise under the achr if an individual, particularly an adult, who was the victim of a human rights violation, waived the compensation which he or she was entitled to. However, quite distinct from the right to compensation, an individual waiver of the right to punishment of those responsible by the victim cannot alleviate the state from its obligation to sanction the perpetrator, unless, of course, the offence at issue is prosecuted by a private party. This is because, as the IACtHR stressed, “[t]he State’s obligation to investigate the facts and punish those responsible does not erase the consequences of the unlawful act in the affected person. Instead, the purpose of that obligation is that every State party ensure, within its legal system, the rights and freedoms recognized in the Convention.”491 Although, strictly speaking, the duty to investigate, prosecute and punish, as a measure of ensuring human rights, has a conceptually distinct basis from the same duty conceptualised as a reparation measure,492 the requirements of effectiveness of investigation and prosecution and the adequacy of punishment rely on the same set of principles established in the IACtHR case-law.493 488 IACtHR (Judgment) Garrido and Baigorria v. Argentina, 27 August 1998, para. 33. 489 Ibid., para. 73. 490 Bonneau, supra n. 3.443, p. 372; IACtHR (Judgment) Caracazo v. Venezuela, 29 August 2002, para. 115. 491 IACtHR (Judgment) Garrido and Baigorria v. Argentina, 27 August 1998, para. 72. 492 Loc.cit. 493 Bonneau, supra n. 3.443, p. 373; Cassel, supra n. 3.471, pp. 95–96; Tigroudja, supra n. 3.482, p. 75.

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They therefore follow the same pattern determining the extent to which the response of the national authorities to a human rights offence could be considered serious and adequate. In particular, the state is obliged to prosecute and punish organisers and direct perpetrators of the human rights offences, as well as all those whose collaboration and acquiescence made it possible for the violation to take place.494 By doing that, the state is obliged to secure that the principles of equality and non-discrimination have been duly complied with495 and it must remove all measures resulting in the impunity for human rights offences.496 Furthermore, the state is obliged to observe that the obligation to investigate and prosecute is complied with seriously and not as a mere formality,497 and to secure effective participation of the victims in the proceedings, in compliance with the domestic law and their rights under the achr.498 In ordering an investigation, prosecution and punishment as measures of reparation, the IACtHR is, as some authors have pointed out, extremely intrusive in the domestic legal orders making specific directives which the states must comply with.499 It has thus ordered the states to publish the results of the investigation and prosecution,500 to ensure that the proceedings are held before competent ordinary criminal rather than military ones,501 and to ensure that administrative proceedings are instituted concurrently with the criminal ones.502 Obligation to Investigate and Prosecute in the achpr System Conceptualising the Obligation to Investigate and Prosecute under the achpr In a politically complex system of human rights protection, established as a response to recurring serious human rights abuses on the continent,503 the conceptualisation of the duty to investigate and prosecute human rights ­offences appears to be a pivotal element in legitimising the human rights s­ ystem in 3.2 3.2.1

494 IACtHR (Judgment) The “Mapiripán Massacre” (v. Colombia), 15 September 2005, para. 298. 495 Bonneau, supra n. 3.443, p. 373. 496 Cassel, supra n. 3.471, p. 96. 497 IACtHR (Judgment) Myrna Mack Chang v. Guatemala, 25 November 2003, para. 273. 498 IACtHR (Judgment) Caracazo v. Venezuela, 29 August 2002, para. 143.1. 499 Tigroudja, supra n. 3.482, p. 75. 500 IACtHR (Judgment) Maritza Urrutia v. Guatemala, 27 November 2003, para. 177. 501 IACtHR (Judgment) 19 Merchants (v. Colombia), 5 July 2004, para. 138. 502 IACtHR (Judgment) Caracazo v. Venezuela, 29 August 2002, para. 143.1. 503 See further: G.M. Wachira, African Court on Human and Peoples’ Rights: Ten years on and still no justice (Minority Rights Group International 2008), pp. 5–13.

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Africa founded on the basis of the achpr. A clear articulation of the duty to investigate and prosecute human rights offences is a strong message to the national authorities of the necessity to make human rights under the achpr ­justiciable504 and effective,505 making it clear that all those responsible for abuses of human rights should face justice. Although the relevant human rights institutions in the African system have still not developed a sufficiently firm and clear conceptual construction of the duty to investigate and prosecute human rights offences, the case-law of these institutions discloses some important similarities with other systems of international human rights protection. On the structural and conceptual level this assertion is primarily supported by the fact that the African system in general follows the classical tripartite construction of duties related to human rights. The state’s primary duty under the achr is to respect human rights by abstaining from any unjustified interference with the effective enjoyment of those rights. In addition to this negative duty, the achpr entails a positive obligation of the state to protect and fulfil human rights. The positive obligation is seen as consisting of a requirement of an ex ante action on the part of the state aimed at the prevention of breaches of human rights, and a duty of an ex post reaction to the possible occurrences of human rights abuses. The latter implies in particular a duty of the state to investigate and prosecute breaches of human rights which have occurred under its jurisdiction.506 Furthermore, the obligation to investigate and prosecute is often conceived as a remedial measure for breaches of human rights.507 The right to a remedy, although not expressly provided under the achpr, was read into the substantive provisions of the achpr as an intrinsically related procedural requirement of effective human rights protection.508 In a number of communications, the AComHPR has indicated the necessity of investigation

504 The commentators suggest that “indivisibility” and “justifiability” of all rights are the key underlying components of the African system (see F. Viljoen, International Human Rights Law in Africa (Oxford, Oxford University Press 2012), pp. 214–219). 505 AComHPR (Communication) The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, no. 155/96, 27 October 2001, para. 68. 506 Viljoen, supra n. 3.504, pp. 216–217. 507 G. Bekker, “The African Commission on Human and Peoples’ Rights and Remedies for Human Rights Violations”, 13(3) Human Rights Law Review (2013), p. 519. 508 See supra 2.3.1.

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and prosecution of those responsible for human rights abuses as a remedial measure for a v­ iolation of the achpr. Examples include the case of Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso where the AComHPR stressed that the State should identify and take to court those responsible for serious human rights violations, such as killings, ill-treatment and enforced ­disappearances.509 Similarly, in Malawi African Association and Others v. Mauritania the AComHPR indicated that the State should institute an independent enquiry into disappearances and should identify and bring to justice those responsible for such human rights violations,510 and in the case of The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria the AComHPR prompted the State to investigate and prosecute State officials and private parties involved in a destructive oil exploitation.511 It should be noted in this context that the requirement of effective investigation and prosecution, as a remedial measure, is often associated with the state’s duty to secure for the victims the possibility of obtaining further remedial measures, such as adequate compensation.512 Lastly, the above assertion of a conceptual consistency of the African system with other systems of international human rights protection on the question of the duty to investigate and prosecute human rights offences, could be observed, as already discussed in this study,513 in the possibility of deduction of the procedural obligation from the achpr substantive norms, without conceiving it within the wider framework of positive obligations or the applicable remedial measures. In this context the obligation to investigate and prosecute is essentially seen as a procedural mechanism reinforcing the substantive human rights protection, which exists as a particular demand derived from the higher substantive norm.

509 AComHPR (Communication) Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, no. 204/97, 7 May 2001. 510 AComHPR (Communication) Malawi African Association and Others v. Mauritania, nos. 54/91, 61/91, 98/93, 164/97 à 196/97 and 210/98, 11 May 2000. 511 AComHPR (Communication) The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, no. 155/96, 27 October 2001. 512 AComHPR (Communication) Abdel Hadi, Ali Radi & Others v. Republic of Sudan, no. 368/09, 5 November 2013, para. 92; AComHPR (Communication) Zimbabwe Human Rights ngo Forum v. Zimbabwe, no. 245/02, 15 May 2006; AComHPR (Communication) Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan, no. 279/03-296/05, 27 May 2009. 513 See supra 2.4.

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3.2.2

Obligation to Investigate and Prosecute in the African Human Rights Case-Law 3.2.2.1 Applicability and Effectiveness of the Obligation to Investigate and Prosecute Human Rights Offences in the African System In a vast majority of cases examined by the AComHPR the obligation to investigate and prosecute human rights offences was construed under Article 1 achpr (general obligations of states) read in conjunction with other substantive provisions of that Convention.514 This therefore represents the normative basis for construing the applicability of the duty to investigate and prosecute human rights offences in the African system. The specific aspects of effectiveness of the obligation to investigate and prosecute human rights offences are construed under Article 7 achpr (right to a fair trial). In the case of Egyptian Initiative for Personal Rights & Interights v. Egypt the AComHPR has held, drawing from the ECtHR case-law (notably under Article 3 echr), that: … [W]here Victims raise arguable claims to have been ill-treated in breach of violations in the African Charter, the investigation carried out must be prompt and impartial to be effective. An impartial investigation should involve a thorough or scrupulous procedure which leads to results that identify the perpetrators and punishes those responsible for the illtreatment and other violations alleged.515

In particular, in the case of Zimbabwe Human Rights ngo Forum v. Zimbabwe the AComHPR explained that Article 7 achpr encompasses the right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate relief. Accordingly, when the State granted clemency for serious human rights abuses, such as abductions, forced imprisonment, arson, destruction of property and kidnappings, which prevented victims from using any remedy to vindicate their rights and which prevented to 514 In the AComHPR case-law Article 1 has been seen as placing the states under the obligation of respecting, protecting, promoting and implementing the rights guaranteed under achpr (Association of Victims of Post Electoral Violence & Interights v. Cameroon, no. 272/03, 25 November 2009, para. 87). Accordingly, a violation of any provision of the achpr automatically implies a violation of Article 1 of that Convention (Sir Dawda K. Jawara v. Gambia, nos. 147/95-149/96, 11 May 2000, para. 46). 515 AComHPR (Communication) Egyptian Initiative for Personal Rights & Interights v. Egypt, no. 323/06, 16 December 2011, para. 230.

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ensure that those responsible for such crimes were punished, it violated obligations enshrined under Articles 1 and 7 achpr.516 The general approach adopted by the AComHPR was followed by the ­ACtHPR. In its landmark case on the matter, Norbert Zongo and Others v. Burkina Faso, concerning the assassination of a prominent Burkina Faso journalist, the ACtHPR examined the questions related to the lack of an effective investigation into the killing under Article 7 achpr. It thereby addressed the procedural matters of one’s right to have his or her case heard by the competent court, and the question of the right to an effective remedy for serious breaches of human rights under the achpr.517 Whereas it found no violation of the achpr with regard to the particular procedural requirements of a fair trial under Article 7, concerning the organisation and independence of the respondent State’s judicial apparatus and the requirements of equality of arms and adversarial trial between the victim and the suspect, the ACtHPR found a violation of that provision with regard to the protracted length of proceedings concerning the death of the journalist.518 The ACtHPR also found a violation of Article 7 achpr related to the lack of an effective remedy for the deprivation of life due to inordinate length of the proceedings, failure of the authorities’ to follow diligently the relevant leads and their failure to process effectively the victims’ civil claim for damages.519 Moreover, with regard to the domestic authorities’ general obligation under Article 1 achpr, in line with the AComHPR’s approach, the ACtHPR held that the authorities’ lack of diligence to investigate, prosecute and put to trial the killers of the journalist, giving rise to a violation of Article 7 achpr, simultaneously violated Article 1 achpr.520 The observed particular aspects of applicability and effectiveness of the ­obligation to investigate and prosecute human rights offences can be further observed, as already indicated above, with regard to concrete applicable substantive provisions of the achpr. 516 AComHPR (Communication) Zimbabwe Human Rights ngo Forum v. Zimbabwe, no. 245/02, 15 May 2006, paras. 213–215. 517 ACtHPR (Judgment) Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest Zongo and Blaise Ilboudo & The Burkinabè Human and Peoples’ Rights Movement v. Burkina Faso, no. 013/2011, 1 April 2014, paras. 118–119. 518 Ibid., paras. 120–140. 519 Ibid., paras. 141–157. 520 Ibid., para. 199.

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3.2.2.2 Prohibition of Discrimination and Equality of Treatment With regard to the prohibition of discrimination under Article 2 and, in the concrete case Article 18(3) achpr (non-discrimination against women), the AComHPR found in the Egyptian Initiative for Personal Rights & Interights v. Egypt that the failure of the State to investigate and prosecute the perpetrators, both state officials and private individuals, who committed gender-specific breaches of human rights against female journalists during demonstrations, such as sexual assaults and ill-treatment, disclosed a lack of commitment of the state under the cited provisions of the achpr.521 Moreover, the AComHPR emphasised, with regard to Article 3 achpr (equality before the law), that this provision implies equal treatment of individuals, irrespective of their gender, not only when they are the object of the application of law but also when the law is applied or enforced for the purpose of their protection.522 In this connection it should also be noted that, in line with its general approach to the state’s obligation to investigate and prosecute human rights offences under the achpr, the AComHPR found a violation of Article 1 achpr read in conjunction with other cited provisions of that Convention in connection with the State’s failure to thoroughly investigate the violations and institute mechanisms to protect the victims from further violations.523 Likewise, relying on the prohibition of discrimination under Article 2 ­a chpr, the AComHPR, in its landmark Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, stressed the need for the Member States to ensure proper investigation and diligent prosecution of perpetrators and adequate judicial procedures responsive to the needs of victims of such offences.524 3.2.2.3 Right to Life The obligation to investigate and prosecute a deprivation of life under Article 4 achpr, irrespective of whether it is imputable to the respondent state or 521 AComHPR (Communication) Egyptian Initiative for Personal Rights & Interights v. Egypt, no. 323/06, 16 December 2011, para. 163. 522 Ibid., para. 177. 523 Ibid., para. 273. 524 AComHPR, Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, adopted at the 55th Ordinary Session, 28 April to 12 May 2014.

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not, was construed with reference to the IACtHR case-law as an obligation to “duly investigate, prosecute the assailants and compensate the victims.”525 For instance, a violation of Article 4 achpr was found in the case of Kevin Mgwanga Gunme et al., v. Cameroon where the domestic authorities had failed to undertake all effective measures to investigate and redress victims of violent suppressions of peaceful demonstrations.526 In the case of Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan the AComHPR explained that the obligation to investigate and prosecute extra-judicial executions under Article 4 achpr could not be satisfied merely by instituting an investigation but it also required that the investigation be effective in that it should, inter alia, secure adequate implementation of the provisions protecting the right to life.527 3.2.2.4 Prohibition of Ill-treatment and Respect for Human Dignity With regard to the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 achpr the AComHPR, referring to the un Istanbul Protocol, adopted the Robben Island Guidelines where it stressed the necessity of a prompt, impartial, independent and effective investigation into the claims of torture or ill-treatment.528 Under Article 18 of these Guidelines such an investigation must also be official. This implies an ex officio institution of the proceedings and, as emphasised in the case of Article 19 v. Eritrea, effective prosecution of those responsible before the competent courts.529 The importance of such a procedural obligation under Article 5, read in ­conjunction with Article 18(3) achpr, was underlined, for instance, in the above-cited case of Egyptian Initiative for Personal Rights & Interights v. Egypt concerning the ill-treatment of female journalists in Egypt.530 Moreover, the duty to investigate and prosecute torture and ill-treatment under Article 5 525 AComHPR (Communication) Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi v. Zimbabwe, no. 295/04, 2 May 2012, para. 133. 526 AComHPR (Communication) Kevin Mgwanga Gunme et al., v. Cameroon, no. 266/03, 27 May 2009, para. 112. 527 AComHPR (Communication) Organisation & Centre on Housing Rights and Evictions v. Sudan, nos. 279/03-296/05, 27 May 2009, para. 150. 528 AComHPR, Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines), April 2008, Articles 17–19. 529 AComHPR (Communication) Article 19 v. Eritrea, no. 275/03, 30 May 2007, para. 72. 530 AComHPR (Communication) Egyptian Initiative for Personal Rights & Interights v. Egypt, no. 323/06, 16 December 2011, paras. 203–208.

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achpr, as provided in the Robben Island Guidelines, was construed as a remedial measure for the victims of such human rights abuses.531 Furthermore, the AComHPR’s general conceptual approach to the duty to investigate and prosecute human rights offences can be observed, for instance, in the case of Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan where the AComHPR found a violation of Article 5 achpr (prohibition of torture and other forms of ill-treatment) due to a lack of any credible indication that the respondent State had taken any measures to investigate and prosecute the allegations of torture of human rights activists related to their perceived cooperation with the icc. On the same basis a violation was found under Article 1 in conjunction with, inter alia, Article 5 achpr.532 The same approach was followed in Abdel Hadi, Ali Radi & Others v. Republic of Sudan, where the AComHPR explained that where abuses occur, the states are under an obligation to institute a prompt, impartial and effective investigation in order to bring the perpetrators to justice as well as to afford redress to the victims.533 A breach of the prohibition of slavery, as one of the aspects undermining human dignity listed under Article 5 achpr, also gives rise to an obligation to investigate and prosecute perpetrators of such acts. In the ecowas Community Court of Justice landmark case of Hadijatou Mani Koraou v. The Republic of Niger, that court held that once being confronted with the allegations of slavery, notably related to a specific victim’s family situation, the domestic authorities were under an obligation, arising inter alia under Article 5 achpr, “to bring a criminal prosecution or punish this crime or offence as need be.”534 3.2.2.5 Freedom of Expression The obligation to investigate and prosecute human rights offences may also bear relevance for the protection of freedom of expression when that freedom was subjected to attacks of a criminal nature. 531 AComHPR (Communication) Dr. Farouk Mohamed Ibrahim v. Sudan, no. 386/10, 25 February 2013, paras. 47–48. 532 AComHPR (Communication) Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, no. 379/09, 14 March 2014, paras. 101, 138–141. 533 AComHPR (Communication) Abdel Hadi, Ali Radi & Others v. Republic of Sudan, no. 368/09, 5 November 2013, paras. 76 and 22. 534 ecowas Community Court of Justice (Judgment), Hadijatou Mani Koraou v. The Republic of Niger, no. ECW/CCJ/JUD/06/08, 27 October 2008, paras. 82–84. See further: H. Duffy, “HadijatouMani Koroua v Niger: Slavery Unveiled by the ecowas Court”, 9(1) Human Rights Law Review (2009), pp. 151–170.

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In the above-cited Norbert Zongo case, the ACtHPR found that the lack of an effective investigation into the killing of a journalist could give rise to an issue under the right to freedom of expression under Article 9 achpr. However, on the facts of the case the ACtHPR was unable to find that the failure of the authorities to identify and apprehend the assassins of the journalist infringed the applicants’ exercise of the freedom of expression.535 4

Obligation to Investigate and Prosecute Human Rights Offences in eu Law

A (Still) Developing Concept of Human Rights Protection within the eu The developments in the eu legislation introduced with the adoption of the teu brought some fundamental changes in the positioning of the eu in the global structure of human rights protection and promotion. For some commentators, this has opened the door for the eu to maintain an additional dimension in the international supervision of human rights since the eu, in so far as individual rights are directly effective, could actively and conclusively protect those rights within the territories of the eu Member States.536 This is true for at least three reasons. Firstly, the eu legislation is no longer concerned only with the traditional areas of eu policies, such as competition or market regulation, but also covers various spheres of security and privacy, which makes the eu a powerful and pervasive law-making entity invested to impinge on the various matters of human rights law and welfare.537 Secondly, the eu, despite some evolutionrelated difficulties, has the necessary institutional capacity to deal with the matters of human rights law. This relates in particular to the institutions such 4.1

535 ACtHPR (Judgment) Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest Zongo and Blaise Ilboudo & The Burkinabè Human and Peoples’ Rights Movement v. Burkina Faso, no. 013/2011, 1 April 2014, paras. 186–187. 536 R.K.M. Smith, “Monitoring and enforcing fundamental rights: Can the European Union measure up against other international organizations?” in J.E. Wetzel, The eu as a “Global Player” in Human Rights? (London, Routledge 2011), p. 33. Nevertheless, as observed by T. Rathgeber, ambiguity remains the main feature of the eu’s involvement in and engagement with the mechanisms of international human rights law (T. Rathgeber, “A Human Rights Champion? The eu at the un Human Rights Council in 2013”, European Yearbook on Human Rights (2014), p. 113). 537 De Búrca, supra n. 1.103, p. 169.

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as the Fundamental Rights Agency or the cjeu.538 And thirdly, the eu is in a privileged position with regard to the common sovereignty objection in the area of international enforcement of human rights because the eu Member States have already agreed to the limitation of their sovereign rights by their accession to that supranational organisation. This is a powerful argument but should nevertheless be used with the necessary circumspection since the primary function of the eu is not protection and promotion of human rights, although respect of rights is one of the central underlying principles of its functioning.539 The above considerations make it clear that the discussion on human rights discourse at the European level has to recognise the importance of the eu’s position in the overall multi-layered structure of human rights protection. This structure could be viewed as a set of interrelated legal regimes comprising the coe mechanisms, and in particular the echr, eu law and policies, and the community of domestic human rights regimes.540 Within the structure of the human rights protection at the eu level in particular, the eu Charter plays the central role. The eu Charter is an instrument of human rights law directly binding on the eu and its Member States. Under Article 6(1) teu the eu Charter is of the same legal value as the Treaties, although it cannot extend the competences of eu law by establishing or modifying them (Article 6(2) teu and Article 51(2) of the eu Charter). The eu Charter protects some core values of human rights law, such as the right to life (Article 2), physical and mental integrity (Article 3), prohibition of torture (Article 4) and security of person (Article 6), and codifies some other rights, particularly those of economic and social nature, which are not, at least not expressly, provided by the echr. This contributes to a greater visibility and legitimacy of those rights at the European level, and provides a reference point for the eu

538 Smith, supra n. 3.536, pp. 39–41; Búrca, supra n. 1.103, pp. 174–176. This does not, however, mean that other institutions do not contribute to the development of human rights within the eu. Note that W. Benedek considers the European Parliament to be the driving force behind human rights within the eu (see W. Benedek, “eu Action on Human and Fundamental Rights in 2013”, European Yearbook on Human Rights (2014), p. 88). 539 Smith, supra n. 3.536, pp. 46–47; see further: A. Von Bogdandy, “The European Union as a Human Rights Organisation? Human Rights and the Core of the European Union”, 37 Common Market Law Review (2000), pp. 1307–1338. 540 M. Varju, “European human rights law as a multi-layered human rights regime: Preserving diversity and promoting human rights”, in J.E. Wetzel, The eu as a “Global Player” in H ­ uman Rights? (London, Routledge 2011), p. 49.

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Member States in implementing eu law (Article 51(1) of the eu Charter).541 In this respect, the cjeu has recognised that the eu Member States are bound by the eu Charter “in all situations governed by European Union law.”542 In addition to the eu Charter, Article 6 teu refers to the echr which, together with the constitutional traditions common to the Member States, provides for the fundamental rights that form the general principles of eu law. The structure of the guarantees under the eu Charter is largely inspired by the echr,543 which in turn plays an important role in understanding of the fundamental rights of eu law.544 This influence is, in the words of the cjeu, of “special significance”545 although nothing in eu law can be interpreted as governing the relations between the echr and the legal systems of the eu Member States,546 nor does it mean that the eu is directly bound to comply with the echr or the case-law of the ECtHR.547 Another important development in eu law introduced with the entry into force of the teu is the expansion of the eu’s competence in the sphere of ­criminal justice. This competence is now shared between the eu and its Member States (Article 4(2)(f) tfeu) in that every action of the States depends on the extent to which the eu has exercised its competence on the ­matter 541 T. Marguery, “European Union Fundamental Rights and Member States Action in eu Criminal Law”, 20(2) Maastricht Journal of European and Comparative Law (2013), p. 284. 542 cjeu (Judgment) Åklagaren v Hans Åkerberg Fransson [gc], C-617/10, 26 February 2013, para. 19. 543 D. Shelton, “The Boundaries of Human Rights Jurisdiction in Europe”, 13 Duke Journal of Comparative and International Law (2003), pp. 117–118. 544 Varju, supra n. 3.540, pp. 53–55. Note that when discussing some of the core rights under the eu Charter, such as the right to life (Article 2) and the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), commentators have read into their scope the existence of the procedural obligation as developed in international human rights law, particularly in the case-law of the ECtHR. See further: E. Wicks, “Right to Life”, in S. Peers, T. Hervey, J. Kenner and A. Ward (eds.), The Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing 2014), pp. 37–38; Ibid., M. Nowak and A. Charbord, “Prohibition of Torture and Inhuman or Degrading Treatment or Punishment”, p. 95. 545 cjeu (Judgment) Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [gc], Joined cases C-402/05 and C414/05, 3 September 2008, para. 283. 546 cjeu (Judgment) Åklagaren v Hans Åkerberg Fransson [gc], C-617/10, 26 February 2013, para. 49. 547 T. Ahmed and I. de Jesús Butler, “The European Union and Human Rights: An International Law Perspective”, 17(4) European Journal of International Law (2006), p. 774.

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­(Article  2(2) teu). In particular, the enlarged competence of the eu in the sphere of criminal justice empowers the eu to set out requirements to facilitate judicial cooperation based on the principle of mutual recognition and the desired harmonisation by establishing minimum rules of approximation of procedural and substantive criminal law.548 This particularly relates to the matters of mutual recognition of procedural actions and requirements (Article 82(2) tfeu); setting up the minimum rules concerning the definition of criminal offences and sanctions for serious crime with a cross-border dimension – specifically terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime (Article 83 tfeu); enhanced action in crime prevention (Article 84 tfeu); strengthening of the Eurojust and Europol missions (Articles 85 and 88 tfeu); setting up of the European Prosecutor’s Office (Article 86 tfeu); and laying down measures of police cooperation (Article 87 tfeu). In addition to these areas of transnational criminal justice, the eu also positioned itself in the sphere of international criminal justice by implementing the cooperation obligation agreement with the icc, which notably relies on the fundamental importance and the priority that must be given to the respect for human rights.549 The two developments in eu law related to the entry into force of the teu: the protection of fundamental rights and the enhanced cooperation in criminal law bear particular significance in the area of procedural criminal justice where all situations governed by eu law must be in compliance with the eu fundamental rights.550 The latter are, on the other hand, largely inspired by the echr which, although perhaps not institutionally, requires that the actions falling within the area of eu procedural criminal justice be interpreted in line with the general principles of human rights law established under that Convention. In light of these considerations, the procedural action of criminal prosecution governed by eu law must be in compliance with the eu fundamental 548 Marguery, supra n. 3.541, p. 283. 549 Agreement between the International Criminal Court and the European Union on cooperation and assistance, L115, 28/04/2006. See further: O. Bekou and M. Chadwick, “The eu commitment to international criminal justice: Achievements and possibilities”, in J.E. Wetzel, The eu as a “Global Player” in Human Rights? (London, Routledge 2011), pp. 82–96. 550 Marguery, supra n. 3.541, p. 294.

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rights and their conceptualisation under the echr.551 This equally applies to all areas of fundamental rights which can be enhanced or impinged by criminal prosecution. Accordingly, for instance, in the application of the Victims Directive, the States should interpret its provisions in full respect for fundamental rights and should observe the principles recognised in the eu Charter. In particular, the States should be mindful of the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non- discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial (Recital 66 of the Victims Directive). Similarly, in securing the translation for the defendants in criminal proceedings the States must observe Article 6 echr and Articles 47 and 48(2) of the eu Charter which enshrine the right to a fair trial and respect for the rights of the defence (Recital 5 of the Directive on the right to interpretation and translation in criminal proceedings),552 just as they are obliged by the considerations under Articles 5 and 6 echr and Articles 47 and 48(2) of the eu Charter in the field of providing information in criminal proceedings (Recitals 5–8 of the Directive on the right to information in criminal proceedings).553 Moreover, when securing the defendants’ right to access to a lawyer, in addition to their observance of the echr and the eu Charter requirements, the States must be mindful of the guarantees enshrined in the iccpr (Recital 6 of the Directive on the right of access to a lawyer)554 and should be aware that the Directive on the right of access to a lawyer promotes the application of the eu Charter, in particular Articles 4, 6, 7, 47 and 48, by building upon Articles 3, 5, 6 and 8 echr, as interpreted in the case-law of the ECtHR (Recital 12 of the Directive on the right of access to a lawyer). Conceptually, the above considerations bear the same significance on the eu instruments which recognise the function of criminal prosecution as a 551 European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens (2010/C 115/01), para. 2.1. 552 Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the Right to Interpretation and Translation in Criminal Proceedings. 553 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the Right to Information in Criminal Proceedings. 554 Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.

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mechanism of enforcement of human rights (the sword function of human rights). This, at present, in addition to the general principles recognised under the Victims Directive, relates to more specific areas of human rights protection from the offences of: human trafficking; sexual exploitation and gender violence; and terrorism.555 4.2 The Victims Directive Building on the Framework Decision of the Council of the European Union on the standing of victims in criminal proceedings,556 which in itself represented a milestone instrument in codifying rules on the victims’ rights at the European supranational level,557 the Victims Directive represents an overarching instrument on the victims’ rights in criminal proceedings within the eu. The Victims Directive is applicable in relation to criminal offences committed in the eu and to criminal proceedings that take place in the eu, although it also confers rights on victims of extra-territorial offences, but only in relation to criminal proceedings that take place in the eu (Recital 13). The Victims Directive places emphasis on the victims’ needs, including, in particular, the need to be recognised and treated with respect and dignity; to be protected and supported; to have access to justice; and to obtain compensation and restoration. These needs should be approached in an individual manner and based on the individual assessment of a particular situation. The emphasis is on the victims’ participatory rights in criminal proceedings, which should be recognised irrespective of the victims’ formal procedural position (civil party, witness or private prosecutor).558

555 The Stockholm Programme, paras. 2.3.4, 4.4.2, 4.4.3, and 4.5; Recital 69 of the Victims Directive. 556 Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA). 557 See further: B.V. Fernández, “The Standing of the Victim in Criminal Proceedings throughout the European Union”, in M. de Hoyos Sancho (ed.), Criminal Proceedings in the ­European Union: Essential Safeguards (Valladolid, Lex Nova 2008), pp. 202–222; M.S. Groenhuijsen and A. Pemberton, “The eu Framework Decision for Victims of Crime: Does Hard Law Make a Difference?” 17 European Journal of Crime, Criminal Law and Criminal Justice (2009), pp. 43–59; cjeu (Judgment) Pupino case [gc], C-105/03, 16 June 2005. 558 Guidance document related to the transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, Ref. Ares(2013)3763804 – 19/12/2013, p. 4.

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The Victims Directive recognises that a crime is not only a wrong against society but also a violation of the individual rights of victims (Recital 9). The victims should thus be given a key role in criminal proceedings, which should not adversely affect the offender’s right to a fair trial and his or her other rights (Recital 9–12).559 The emphasis is on several categories of victims, in particular children and persons with disabilities (Recitals 14–15); victims of terrorism (Recital 16); victims of various forms of gender violence (Recital 17); as well as victims of hate crime, human trafficking and organised crime (Recital 57). In any case, the term victim is broadly defined as covering any natural person560 who has suffered any harm or damage directly caused by a criminal offence. It also covers family members of the deceased victim, who have suffered harm because of the person’s death directly caused by a criminal offence (Recital 21; Article 2). Victims’ rights in criminal proceedings under the Victims Directive are systematised in several categories: (1) right to understand and to be understood (Articles 3–6); (2) right to interpretation and translation (Article 7); (3) right to access to victim support services (Articles 8–9); (4) right to be heard (Article 10); (5) rights in the event of a decision not to prosecute (Article 10); (6) right to safeguards in the context of restorative justice services (Article 12); (7) right to legal aid (Article 13); (8) compensatory rights (Article 14–16); (9) rights of victims non-residents (Article 17); and (10) right to protection (Articles 18–24). These rights can be observed as functional and participatory victims’ rights, bearing significance for both the requirements of applicability and effectiveness of the function of criminal prosecution within the eu. 4.2.1 Victims’ Functional Rights The central tenet of the victims’ functional rights recognised under the Victims Directive is reflected in the unequivocal recognition that a crime is not only a wrong against society but also a violation of the individual rights of victims (Recital 13). Accordingly, proper treatment of the victims corresponds to their fundamental rights, recognised under the eu Charter and the echr, which the mechanisms of criminal law must seek to make effective (Recital 66). The key rights in this respect include: human dignity, the right to life, physical and mental integrity of the person, liberty and security, respect for private and family life, protection of personal data, right to property, freedom of movement

559 Ibid., p. 7. 560 See cjeu (Judgment) Giovanni Dell’Orto, C-467/05, 28 June 2007, para. 60; cjeu (Judgment) Emil Eredics and Mária Vassné Sápi, C-205/09, 21 October 2010, para. 31.

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and residence, equality before the law, the rights of the child and of the elderly, integration of persons with disabilities, and the right to an effective remedy.561 The eu Member States are obliged to interpret the requirements under the Victims Directive in compliance with the general principles of eu law, the eu Charter and the standards set out in the case-law of the ECtHR, particularly concerning the victims’ access to justice and their effective participation in the proceedings.562 In doing that, the Member States should be mindful that these mechanisms are not mutually exclusive but rather complementary. Hence, when the Victims Directive leaves a margin of discretion to the national authorities in implementing its provisions, such as the discretion to provide or not provide the victims right to appeal against the decision to release the offender, this does not absolve the states from their possible obligations under the echr in that respect.563 The recognition of the relevancy of victims’ fundamental rights corresponds to two procedural measures affecting the function of criminal prosecution: (1) the institution of criminal proceedings as a response to the harm suffered by the victim; and (2) the right of the victim to a review of a decision not to prosecute. The Victims Directive envisages two modalities of the institution of criminal proceedings: based on the complaint made by the victim, or through the ex officio prosecution based on the information about a criminal offence suffered by the victim (Recital 22). In any case, the victim should be able to obtain acknowledgment of his or her criminal complaint in the language that he or she understands, and to that effect should receive the necessary linguistic assistance (Recitals 24 and 25; Article 5). In the context of the victims’ right to receive information, the Victims Directive makes reference to two possible decisions terminating criminal proceedings. First is the decision not to prosecute, which can be a decision of any authority not to proceed with the case or to end an investigation or not to prosecute the offender (Article 6 para. 1(a)), and the second is a final judgment in the trial (Article 6 para. 2(a)). Whereas the former decision should be made 561 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Strengthening Victims’ Rights in the eu, COM(2011) 274, 18/05/2011, p. 3. Note that Recital 66 of the Victims Directive does not list protection of personal data, freedom of movement and residence (see Recital 10), and the right to an effective remedy, whereas it, in addition to the above, refers to the right to a fair trial. 562 Guidance document, supra n. 3.558, p. 1. 563 Ibid., p. 19.

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available, upon request, to all victims of crime, the latter should be available depending on the role of the victim in the proceedings. But in any case, the decisions referred to, must be reasoned by an extensive statement of reasons or a brief summary. The only exception to this can follow from reasons of confidentiality or in the case of a decision of a jury (Article 6 para. 3). The requirement of a reasoned decision is of central importance for securing the victims’ right to a review of the decision not to prosecute (Article 11).564 The victim is thereby given the right to verify whether the established procedures and rules have been duly complied with and whether the decision to end the prosecution is correct.565 Leaving aside the question of the modalities of enforcement of this right, it suffices at this point to observe that its enumeration in the Victims Directive suggests that the function of criminal prosecution is (also) a concept underlined with the human rights considerations, since the correctness of the decision (not) to prosecute must be assessed against the rights of the victims. Moreover, the right of the victim to challenge the decision not to prosecute correlates to a duty of the State to secure an effective examination of such a complaint, which may eventually lead to the decision to resume criminal prosecution, and bring about the conviction of the offender.566 4.2.2 Victims’ Participatory Rights Irrespective of the above observed subset of functional rights, the Victims Directive is an international mechanism primarily concerned with the victims’ participatory rights, some of which are enunciated in a particularly detailed manner. The Victims Directive expressly provides for the victims’ right to participate, or to be heard, and to give evidence in the proceedings (Article 10). This right can be exercised as provided under the relevant domestic law and is naturally subject to certain limitations. Thus, in the Katz case, the cjeu explained that in the case of a subsidiary prosecution by the victim, there is no obligation on a national court to permit the victim to be heard as a witness. However, in the absence of such a possibility, it must be possible for the victim to be permitted to give testimony which can be taken into account as evidence.567 Furthermore, the victims have the right to understand and to be understood (Recital 21; Article 3). This is a communication safeguard forming a whole with the victims’ right to receive information (Articles 4 and 6), to convey their 564 565 566 567

Loc. cit. Ibid., p. 30. See further: infra 7.2.2. cjeu (Judgment) Győrgy Katz v. István Roland Sós, C-404/07, 9 October 2008, para. 50.

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complaints (Article 5), and to obtain translation of the relevant information (Article 7). The right to understand and to be understood underlines the necessity for the victims to be able to follow the proceedings. Any exchange of information with the victim must be based on a personalised approach that takes into account the particular aspects of the victim’s personal characteristics. The communication must therefore be made in a language understandable and accessible to the victim and the victim must be given an opportunity to be accompanied by a person of his or her choice when making the complaint before the authorities.568 The victims have the right to receive information about their procedural rights from the first contact with any of the criminal justice authorities (police, prosecution service, courts) and such information must be provided without necessary delay (Article 4 para. 1). The information must be conveyed based on the individual, pro-active approach and may include various types of means allowing the communication of the victims’ rights (Article 4 para. 2).569 As already observed above, the right to receive information relates to the decisions adopted in the criminal case as well as the status of the proceedings (Recitals 26–33; Article 6). The extent to which the victims will be able to exercise this right will depend on their involvement in the case. In particular, every victim must be notified of the decision not to prosecute or, in the case of a prosecution, of the time and place of the trial, as well as the nature of the charges against the offender. Those victims that take part in the proceedings also have the right to be notified of the final decision in the trial and the state of the criminal proceedings, unless that could adversely affect the handling of the case (Article 6 paras. 1–3). In addition, the victim must be notified of the circumstances of release of the remanded offender (Article 6 paras. 5–6). The right to receive information will depend on the wish of the victims unless the victim is entitled to receive such information by virtue of his or her procedural position, such as partie civile who receives various types of procedural information (Article 6 para. 4).570 Victims also have the right to interpretation and translation (Article 7). Unlike the right to linguistic assistance when making the complaint (Article 5), the right to interpretation and translation is conferred only on the victims participating in the proceedings. Specifically, the right to interpretation must be given upon the request of the victim and must be free of charge. It relates to various procedural actions and must be given to the extent n ­ ecessary to s­ ecure the 568 Justice Guidance document, supra n. 3.558, p. 12. 569 Ibid., pp. 13–15. 570 Ibid., p. 19.

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victim’s effective participation in the proceedings (Recital 34; ­Article 7 para. 1). The right to translation is also provided upon request and is free of charge. Translation extends to all information essential to the exercise of rights, which includes, at least, any decision terminating the criminal proceedings (Article 7 para. 3). Furthermore, the right to translation covers information about the time and place of the trial and, in certain circumstances, relevant passages of the essential documents, which may be satisfied by an oral translation or summary of the relevant text (Article 7 para. 4–6). The Victims Directive also provides that the domestic authorities are obliged to assess the victims’ need for interpretation or translation which corresponds to the victims’ right to seek such an assessment (Article 7 para. 7). Furthermore, the victims and, under certain circumstances, their family members have the right to access confidential support services free of charge (Article 8) and to receive support from such services (Article 9). The States are also obliged to minimise the difficulties of non-resident victims when securing their participation in the proceedings (Article 17). The States should in addition put in place various safeguard measures in the case of the victim’s participation in restorative justice schemes (Article 12) just as they are obliged to secure protection of victims and their family members from secondary victimisation or any harmful pressure or conduct (Articles 18–24). In this context, the victims and their family members also have the right to protection of their privacy. This specifically relates to their personal characteristics, images, personal integrity and personal data as well as any information that could lead to the identification of a child victim. Thereby, the emphasis is on the media, which are encouraged to take self-regulatory measures to comply with the right to protection of the privacy of victims (Article 21). Within the participatory rights, it is also worth noting that the Victims Directive guarantees a number of compensatory rights (Articles 13–16) although that matter remains to be primarily regulated under the Directive relating to compensation to crime victims.571 Specific Areas of Human Rights Protection through the Effective Application of Criminal-Law Mechanisms Conceptually, the specific aspects of human rights which require protection through criminal prosecution can be determined in the relevant eu legislation through three elements: (1) recognising a crime as a human rights offence; (2) providing for the obligation of criminal prosecution in addressing such offence; and (3) recognising (some) of the victims’ functional rights.

4.3

571 Council Directive relating to compensation to crime victims, 2004/80/EC, 29 April 2004.

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The cumulative presence of these elements sends a sufficiently clear signal to the Member States that in implementing eu measures and taking action in the combat against criminality they must ensure that the subset of human rights underlying any such measure or activity must be acknowledged and respected. One of the areas of crime which the early eu mechanisms recognised as involving human rights issues is human trafficking.572 In the 1996 European Parliament Resolution on trafficking in human beings573 it was stressed that trafficking in human beings constitutes a serious violation of human rights, which must be answered by a common policy involving, inter alia, the mechanism of criminal prosecution. Indeed, more recently, the European Parliament qualified human trafficking as one of the most egregious violations of human rights, and urged more effective criminal prosecutions of such human rights offences.574 In the context of recognising victims’ rights and strengthening their position in the proceedings, the eu Commission pointed out that the victims of human trafficking are a particularly vulnerable group which requires special protection.575 Human trafficking was recognised as a problem which must be tackled in a comprehensive manner, where the protection of victims and effective prosecutions are of a particular value.576 The central eu mechanism on trafficking in human beings, the Directive 2011/36/EU,577 specifies in its first recital that human trafficking is at the same time a serious crime and a gross violation of fundamental rights heavily 572 See further: L. Hauber, “The Trafficking of Women for Prostitution: A Growing Problem Within the European Union”, 21(1) Boston College International and Comparative Law Review (1996), pp. 186–191; T. Obokata, “eu Action against Trafficking of Human Beings: Past, Present and the Future”, in E. Guild and J. Niessen (eds.), Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings (Leiden, Martinus Nijhoff Publishers 2006), pp. 387–407. 573 The European Parliament, Resolution on trafficking in human beings, A4-0326/95, oj C 032, 05/02/1996 P. 0088. 574 European Parliament, Committee on Women’s Rights and Gender Equality, Report on sexual exploitation and prostitution and its impact on gender equality (2013/2103(ini)), 4 February 2014. 575 Communication: Strengthening Victims’ Rights in the eu, supra n. 3.561, p. 7. 576 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Delivering an area of freedom, security and justice for Europe’s citizens, Action Plan Implementing the Stockholm Programme, COM(2010) 171, 20/04/2010, p. 6. 577 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.

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c­ ontravening the rights recognised under the eu Charter. This Directive places emphasis on the “jail the offender” model of response to human trafficking.578 In particular, it stresses its human rights approach to the problem, clarifying that the more rigorous prevention, prosecution and protection of victims’ rights are its major objectives (Recital 7). Under the Directive 2011/36/EU, criminal investigation and prosecution should be undertaken ex officio and should not depend on the formal complaint made by the victim. The victim may institute the proceedings but does not have the privilege of terminating the case on his or her initiative (Article 9 para.1). In securing effective prosecution, the eu Member States must provide for such time-limits which will run for a sufficient period of time after the victim has reached the age of majority. Moreover, they should train their officials dealing with the matter and should ensure special investigative tools, such as those used for organised crime, for combating human trafficking (­Article 9 ­paras. 2–4). Furthermore, given the ordinarily present transnational element of the offences of trafficking in human beings, under Article 10 of the Directive 2011/36/ EU, Member States must establish their jurisdiction over offences committed in whole or in part on their territory (territoriality principle) or where the offender is one of their nationals (active personality). Member States may extend their jurisdiction to offences committed outside their territory, inter alia, where the offence was committed against one of their nationals or a person who is a habitual resident in its territory; offences committed for the benefit of a legal person established in their territory; or where the offender is a habitual resident in their territory. For offences committed outside their territory, where jurisdiction is asserted based on the active personality principle, or a Member State opted for extending its jurisdiction in one of the latter cases, the Member State cannot limit its jurisdiction on the grounds that the acts do not constitute a criminal offence at the place where they were performed, nor can the Member State mandate criminal prosecution by a report made by the victim in the State where the offence was committed or by a denunciation from the State where the offence was committed. Directive 2011/36/EU also contains provisions on a number of participatory rights of the victims (Articles 11–16) although it does not expressly confer on them any of the functional rights. However, in several recitals and in the general heading on the assistance and support for victims of human trafficking 578 See further: D.F. Haynes, “Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect the Victims of Trafficking and to Secure the Prosecution of Traffickers”, 26 Human Rights Quarterly (2004), pp. 239–243.

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it makes reference to the Framework Decision 2001/220/JHA, repealed by the Victims Directive, requiring the Member States to ensure that the victims can exercise all their rights envisaged under that mechanism (Article 11), which naturally implies their functional rights as, at present, read out from the provisions of the Victims Directive.579 The same conceptual approach was applied in the area of sexual abuse and sexual exploitation of children. Directive 2011/92/EU580 starts by explicating that sexual abuse and sexual exploitation of children and child pornography constitute serious violations of fundamental rights, in particular guaranteed under the un Convention on the Rights of the Child581 and the eu Charter (Recital 1). The central aim of this Directive is to ensure full respect for the rights and the underlying principles of the eu Charter, in particular related to the right to human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights of the child, the right to liberty and security, the right to freedom of expression and information, the right to the protection of personal data, the right to an effective remedy and to a fair trial and the principles of legality and proportionality of criminal offences and penalties (Recital 50). In pursuing that objective the function of criminal prosecution is conceived as one of the main mechanisms of enforcement. This Directive requires a comprehensive approach covering three areas: the prosecution of offenders, the protection of child victims, and prevention of the phenomenon (Recital 6).582 In particular, the investigation and prosecution of these offences must be ensured in an effective manner (Recital 26). On the operative enforcement plan, the principles on the application of criminal prosecution and the establishment of criminal jurisdiction resemble those provided under the Directive 2011/36/EU (see Recital 7), including the rules on instituting proceedings and the privilege to terminate them (Article 15 para. 1); time-limits for the taking of the prosecuting actions (Article 15 para. 579 Recital 69 of the Victims Directive. 580 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. 581 un General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3. 582 See further: European Commission, Feasibility study to assess the possibilities, opportunities and needs to standardise national legislation on violence against women, violence against children and sexual orientation violence (European Commission, Daphne Programme 2010), p. 127.

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2); use of the special investigative tools (Article 15 paras. 3–4); and the rules on jurisdiction and coordination of prosecution (Article 17). Directive 2011/92/EU also makes an explicit reference to the Framework ­Decision 2001/220/JHA, repealed by the Victims Directive, which must be accordingly observed in the case of a criminal prosecution for the offences at issue (Article 19). Similarly, the measures of protection and support envisaged under this Directive are adjusted to the specific needs of the child victim (Articles 18–20) as are the special preventive mechanisms and programmes ­(Articles 21–25). Another area of crime in which the function of criminal prosecution is also seen as a mechanism of ensuring human rights is terrorism. In the eu legislation terrorism is understood, inter alia, as one of the most serious violations of respect for human rights and fundamental freedoms.583 This emphasises that the combat against terrorism should take into account not only public interest considerations but also the necessity of achieving effective human rights protection from such serious crimes. The 2002 Council Framework Decision 2002/475/JHA provides that the ­investigation and prosecution of terrorism should be undertaken ex officio irrespective of the formal complaint made by the victim. This is a mandatory requirement particularly for the offences of terrorism committed on the territory of the Member State (Article 10 para. 1). The Member States are obliged to establish jurisdiction over the offences of terrorism based on the variant territoriality principle (offences committed wholly or partially on the territory of a Member State, ship flying the state’s flag or aircraft registered in the State); the nationality principle including the residents and legal persons established on the Member State’s territory; and for offences committed against the institutions or people of the Member State in question or against an institution of the European Union or an eu body based in that Member State. In addition, each Member State may provide rules asserting jurisdiction under the territoriality principles for offences of terrorism committed in the territory of a Member State (Article 9 paras. 1 and 4). When several Member States may exercise jurisdiction to prosecute terrorism, they are obliged to cooperate, bearing in mind the following circumstances on establishing criminal jurisdiction: (1) the territoriality principle (territory where the acts were committed); (2) nationality or residency of the perpetrator; (3) origin of the victims; and (4) territory of apprehension of the perpe­ trator (Article 9 para. 2). The aut dedere aut judicare principle applies not only 583 Recitals 1 and 2 of the Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA); The Stockholm Programme, supra n. 3.551, para. 2.3.4.

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with regard to the Member States but also with regard to the third countries (Article 9 para. 3). The Council Framework Decision 2002/475/JHA fully endorses the respect for all rights of the victims recognised under, at the time relevant, the Framework Decision 2001/220/JHA, with an obligation of extending its guarantees of assistance to the victims’ families (Article 10 para. 2). 5 Conclusion The preceding discussion on the comparative solutions in international human rights law has shown that the ascertaining of the procedural obligation within the structure of a particular international human rights mechanism always develops on the basis of one of the conceptual frameworks discussed in Chapter 2, i.e. through the concept of positive obligations, the right to an effective remedy for human rights offences, and/or as an implied instance or inherent component of rights guaranteed under the legal instrument at issue. Nevertheless, the scope of the procedural obligation differs depending on the intended aim of substantive protection envisaged under a specific human rights mechanism. This is because the intended aim of substantive protection of rights inevitably determines the requisite level of their procedural effectuation. There is therefore, as asserted earlier in this study, a relationship of autonomy and connectedness of the substantive and procedural levels of protection of rights in international human rights law. This regularity can be observed in particular in the context of the examined soft law instruments where the content of the procedural obligation always follows the envisaged scope of substantive protection. Under the un Declaration on Torture, which aimed at providing protection from various forms of ill-treatment by state agents, the mandatory procedural response in the sphere of criminal law is envisaged only for torture, as a distinct form of ill-treatment by public officials. At the same time, other types of procedures (not only criminal) may be envisaged for other forms of ill-treatment.584 Similarly, the Declaration on Enforced Disappearance, given the distinctive nature and gravity of the offence of enforced disappearance, provides for the right to complain and to have the complaint investigated by anyone with the legitimate interest alleging enforced disappearance.585 The Principles on the Investigation of Summary Executions recognise the possibility of government complicity and 584 See supra 3.1.1.1. 585 See supra 3.1.1.3.

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bias or insufficient expertise on the part of those conducting investigation into such, usually systemic, violations of human rights. They thus envisage a possibility of investigations of such offences out of the regular channels of criminal justice by the independent commissions of inquiry.586 At the European level, the coe soft law instruments also follow the pattern of autonomy and connectedness of the substantive and procedural levels of protection. The mechanisms of protection from sexual exploitation recognise the vulnerability of victims of such offences and the fact that they often occur out of the territory of a state. This is in particular true for the offences of human trafficking and the abuse of children for pornography, which, on the procedural level, mandate for the extension of criminal jurisdiction out of the territory of a particular state. Nevertheless, the procedural obligations in this context may differ depending on whether an offence has been committed within or out of the territory of a state. Thus, for instance, under the AntiTrafficking Convention the duty to investigate and prosecute exists ex officio unless an offence has been committed outside the state’s territory in which case it may be expected that the victim lodge a criminal complaint himself or herself.587 Similarly, the mechanisms on the protection of victims of domestic violence develop the procedural requirements in connection with the distinctive nature of such offences. For instance, the European Convention on Domestic Violence excludes the possibility of alternative dispute resolution in cases of domestic violence so as to prevent re-privatisation of such offences. It also mandates for dissuasive and effective sanctions for such offences and the necessity of prosecution irrespective of an official complaint lodged by the victim.588 In the context of terrorism, the coe soft law instruments require the states to recognise and prosecute such crimes as human rights offences. By doing that, the prosecuting authorities must avoid placing an excessive burden on the victim and must secure the victim a possibility to challenge the decision not to prosecute.589 In addition to the observed soft law instruments focused on the specific types of human rights offences, there are also soft law instruments which primarily aim at complementing and often clarifying the scope of the particular procedural requirements placed upon the states in connection with the occurrence of human rights offences. These can be differentiated as the mechanisms

586 See supra 3.1.1.4. 587 See supra 3.1.2.3. 588 See supra 3.1.2.4. 589 See supra 3.1.2.5.

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on victims’ rights,590 and the mechanisms focused on specific procedural ­arrangements enhancing the understanding of effectiveness of the domestic authorities’ procedural responses to human rights offences.591 The scope of the procedural obligation under the instruments of soft enforcement is often more refined and concrete than in the observed soft law instruments. In the context of the iccpr,592 the procedural obligation in practical reasoning is primarily construed through the right to (compensatory) remedy, read in conjunction with the relevant substantive provision, as a requirement to bring to justice those responsible for human rights offences. The substantive rights at issue in particular concern: the right to life, including negligence and when the victim survived; torture and other forms of ill-treatment; security of person, implying a broad meaning of personal inviolability; and the minority rights. Under the iccpr the measures which may interfere with the effectiveness of the procedural obligation must be subjected to a thorough scrutiny. Thus, in the hrc case-law, the amnesties are prohibited, the light sentences (including the disciplinary ones) as well as any non-enforcement of the imposed sanctions are also capable of raising an issue of effectiveness, and any discretion in the decision-making process is subjected to scrutiny aimed at the assessment whether discretion has been exercised in good faith and whether the victim had sufficient mechanisms to protect his or her rights. In some instances, where the investigation and prosecution are conducted appropriately, the civil remedy for the victim appears as an acceptable solution. In the context of the cat,593 the procedural obligation is essentially enforcement of the substantive protection envisaged under that Convention. It is a part of the wider concept of criminal enforcement, which consists of a substantive (criminalisation) and procedural (prosecution) limbs. The cat is applicable to ill-treatment by state agents and private persons acting with the consent or acquiescence of a public official. There are three distinctive procedural requirements flowing from the cat. The first is the duty to prosecute torture, the second is the duty to investigate all forms of ill-treatment, and the third is the duty to redress, where the duty of criminal prosecution contemplates the possibility of obtaining damages.

590 Such as the Basic Principles of Justice for Victims (supra 3.1.1.2.), Victims Rights Guidelines (supra 3.1.1.7.), Rec(85)11 on crime victims rights (supra 3.1.2.1.). 591 Such as the Vienna Declaration (supra 3.1.1.5.), Principles on Impunity (supra 3.1.1.6.), Guidelines on Impunity (supra 3.1.2.2.). 592 See supra 3.2.1. 593 See supra 3.2.2.

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Under the ced,594 the procedural obligation is applicable to the instances of enforced disappearances performed by the state agents and private parties acting under the consent or acquiescence of state agents. The central rights flowing from the ced are the right to protection, prevention, and repression of enforced disappearances. The latter right is the obligation to investigate and punish enforced disappearances, while the right to an ex post protection also includes the right to know the truth (fate of the disappeared and the details of the disappearance), and the duty to investigate. The ced also provides for the reparative aspects of protection, which are often seen as the right to access to justice, which includes the right to a remedy (right to complain and to have the complaint investigated – the possibility of actio popularis), and the right to reparation. Unlike in the soft law instruments and the instruments of soft enforcement, where the procedural obligation is a direct or indirect subject of normative regulation (save for the iccpr), the scope of the procedural obligation in the instruments of direct impact is principally the result of a progressive interpretation of the human rights treaty at issue. In particular, Article 1 achr has been interpreted as including the duty to respect (negative duty) and the duty to ensure (positive duty) on the state authorities in securing the rights and freedoms set out in that Convention.595 The latter duty has a substantive aspect (contemplated by Article 2 achr) and a procedural aspect, which in general contains the obligation to: (1) protect human rights; (2) investigate and prosecute breaches of human rights; and (3) repair the harm sustained by a victim of the breach of human rights. Accordingly, the state’s responsibility may be engaged through the unjustified infringement of a right (by state agents or private parties acting under their control or acquiescence), or the failure in performing due diligence in preventing or adequately responding (punishing and redressing) to the breach of a right. The obligation to investigate and prosecute relates to any right under the achr as it has been conceived under Article 8 (access to justice) and 25 (right to a remedy) achr. Moreover, in some instances it arises as an implied aspect of the substantive human right. The obligation to investigate and prosecute is also one of the reparatory measures of restitution and satisfaction (right to truth and right to justice) under the achr. Similarly, under the achpr596 the applicability of the procedural obligation is conceived through the general concept of (ex post) positive obligations, right to a remedy, and implied aspect of higher substantive norms. The effectiveness 594 See supra 3.2.3. 595 See supra 3.3.1. 596 See supra 3.3.2.

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of the procedural obligation is examined through the norm guaranteeing the right to a fair trial. The procedural obligation has been in particular developed with regard to the right to life, prohibition of ill-treatment and protection of human dignity as well as the freedom of expression under the achpr. Lastly, with regard to the eu mechanisms,597 it should be noted that the procedural obligation develops in the context of the eu’s enhanced competences in the sphere of human rights law and criminal justice. Of particular importance in this connection is the Victims Directive, which, as an instrument applicable to all criminal proceedings within the eu, recognises that crime is not only public wrong but also a violation of individual rights. The Victims Directive also recognises certain functional rights (institution of the proceedings and right to a review of the decision not to prosecute) and participatory rights to the victims of crime. Other specific areas of human rights protection through the application of criminal-law mechanisms in eu law concern human trafficking, protection from sexual abuse and terrorism. In view of the above, irrespective at this point of the particularities in the observed systems of human rights protection, it is evident that there are no conceptual disagreements in international human rights law with regard to the states’ procedural obligation. In other words, it is safe to assume that the states are required to secure the effectuation of the requisite substantive human rights protection through the mechanisms of criminal law by an effective investigation, prosecution and, if appropriate, punishment of those responsible for the criminal breaches of human rights.

597 See supra 3.4.

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Obligation to Investigate and Prosecute Human Rights Offences under the echr 1

Procedural Obligation under the echr

The proposed conceptual approach in the analysis of the procedural obligation established two elements constituting its structure: (1) the question of applicability, and (2) the requirement of effectiveness. The assessment of a­ pplicability involves an investigation into the circumstances triggering the adjudication claim under the echr, i.e., instances in which the duty to investigate and prosecute, including its subtle requirements, arises. Applicability essentially determines the adjudication scope of the procedural obligation. The requirement of effectiveness is conceptually concerned with the identification of the constituting components in the structure of the procedural obligation. Put differently, the assessment of effectiveness is an investigation into the appropriateness of the discharge of procedural duties triggered by the occurrence of a human rights offence.1 The requirement of effectiveness essentially concerns the discharge of procedural means. When o­ bserved as an undifferentiated legal standard it inevitably leads to the ­question whether international human rights law, on the one hand, and the relevant criminal law discourse, on the other, imply the same standards of appropriateness of the application of criminal-law mechanisms. The question appears to be practically more relevant, although theoretically less disputed than the applicability issue, since the relevant ECtHR case-law discloses that the majority of human rights violations of the procedural obligation have been found not because there was no application of criminal-law mechanisms but because they were ineffective. In the context of an analysis of the echr system, the above conceptualisation of the procedural obligation will be observed in particular with regard to: (1) Article 2 (right to life); (2) Article 3 (prohibition of torture); (3) Article 4 (prohibition of slavery and forced labour); (4) Article 5 (right to 1 Note that this study will be confined to the questions of the procedural response in the sphere of criminal law, excluding from its scope some other possible forms of investigation (see, for instance, ECtHR (Judgment) Namat Aliyev v. Azerbaijan, no. 18705/06, 8 April 2010, paras. 88–92).

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liberty and security); (5) Article 8 (right to respect for private and family life); (6) Article 9 (freedom of thought, conscience and religion); (7) Article 10 (freedom of expression); (8) Article 11 (freedom of assembly and association); (9) Article 14 (prohibition of discrimination); and (10) Article 1 of Protocol No. 1 to the echr (protection of property). 2

Article 2 echr (Right to Life) and Article 3 echr (Prohibition of Torture)

The right to life under Article 2 echr ranks as one of the most fundamental provisions in that Convention.2 Together with the prohibition of torture under Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe which must be interpreted and applied so as to make their safeguards practical and effective.3 No derogation is permitted from either of these provisions of the echr.4 Moreover, unlike most of the substantive clauses of that Convention, Article 3 makes no provision for exceptions, making its protection absolute even in the most difficult circumstances, such as the fight against terrorism and organised crime.5 The convergence of the two provisions of the echr can also be observed in the conceptualisation of their structure. In particular, the observance of their requirements relates to three implied aspects:6 (1) a negative obligation – requiring­the state to abstain from any unjustified deprivation of life7 or 2 See further on the conceptualisation of protection of the right to life through the mechanisms of criminal-law: Giudicelli-Delage, Manacorda and Tricot, supra n. 1.41. 3 ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 109; ECtHR (Judgment) Marguš v. Croatia [gc], no. 4455/10, 27 May 2014, para. 127. 4 ECtHR (Judgment) İhan v. Turkey [gc], no. 22277/93, 27 June 2000, para. 73; ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 87. 5 ECtHR (Judgment) Chahal v. the United Kingdom [gc], no. 22414/93, 15 November 1996, para. 79; ECtHR (Judgment) Selmouni v. France [gc], no. 25803/94, 28 July 1999, para. 95; ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 195; ECtHR (Judgment) Svinarenko and Slyadnev v. Russia [gc], nos. 32541/08 and 43441/08, 17 July 2014, para. 113. 6 F.R. Martinez, “Legal Protection of Life: Transformation and Expansion (Art. 2 echr and Protocols 6 and 13)”, in J. García Roca and P. Santolaya (eds.), Europe of Rights: A Compendium on the European Convention on Human Rights (Leiden, Martinus Nijhoff Publishers 2012), p. 45; U. Erdal and H. Bakırcı, Article 3 de la Convention européenne des Droits de l’Homme: Guide pratique juridique (Genève, omct 2006), pp. 220–235. 7 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 110.

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ill-treatment;8 (2) a positive obligation to safeguard the lives of those within the state’s jurisdiction9 and to protect them from ill-treatment;10 and (3) a procedural obligation requiring an adequate procedural response in respect of any life-threatening action or omission,11 irrespective of whether in the circumstances the victim survived,12 as well as any form of ill-treatment falling under Article 3.13 The latter subset of rights under Articles 2 and 3 may be engaged in different factual circumstances and, accordingly, the resultant compliance with their requirements may differ both in content and in terms of its underlying rationale depending on the particular situation that has triggered it.14 Conceptually, this procedural obligation under Articles 2 and 3, which is, as observed above, convergent with regard to its requirements,15 can be observed through the particular aspects of its applicability and effectiveness in different contextual circumstances. 2.1 Applicability of the Procedural Obligation under Article 2 echr 2.1.1 Killings by State Agents The state’s procedural obligation ordinarily arises in all instances of intentional deprivation of life by state agents. In the case-law of the ECtHR the concept of

8 9 10 11

ECtHR (Judgment) Gutsanovi v. Bulgaria, no. 34529/10, 15 October 2013, para. 126. ECtHR (Judgment) Bljakaj and Others v. Croatia, no. 74448/12, 18 September 2014, para. 103. ECtHR (Judgment) A. v. the United Kingdom, no. 25599/94, 23 September 1998, para. 22. ECtHR (Judgment) Mocanu and Others v. Romania [gc], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014, para. 317. 12 ECtHR (Judgment) Makaratzis v. Greece [gc], no. 50385/99, 20 December 2004, para. 55 (concerning a police chase and shooting); ECtHR (Judgment) Goncharuk v. Russia, no. 58643/00, 4 October 2007, para. 74 (concerning an arbitrary shooting by soldiers during a military operation); EtHCR (Judgment) Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008, para. 146 (lives endangered by a mudslide); ECtHR (Judgment) Vasil Sashov Petrov v. Bulgaria, no. 63106/00, 10 June 2010, para. 40 (shooting during arrest); ECtHR (Judgment) Pankov v. Bulgaria, no. 12773/03, 7 October 2010, para. 49 (accidental shooting during military shooting practice); ECtHR (Judgment) Nakayev v. Russia, no. 29846/05, 21 June 2011, para. 58 (wounding by shelling during a military operation). 13 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 182; ECtHR (Judgment) O’Keeffe v. Ireland [gc], no. 35810/09, 28 January 2014, para. 172. 14 ECtHR (Decision) Georgi Georgiev v. Bulgaria, no. 34137/03, 11 January 2011. 15 ECtHR (Judgment) Janowiec and Others v. Russia [gc], nos. 55598/07 and 29520/09, 21 October 2013, para. 143.

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the procedural obligation has initially developed in relation to intentional deprivations of life in counter-terrorist operations of state security forces. This obligation­was seen as securing the practical effectiveness of a general legal prohibition of arbitrary killing through a procedure for reviewing the lawfulness of the use of lethal force by state authorities. In particular, the procedural obligation was construed under the state’s general duty under Article 1 read in conjunction with Article 2, which implies that “there should be some form of effective official investigation when individuals have been killed as a result of the use of force” by, inter alia, the state agents.16 The same conceptual approach to the procedural obligation under Article 2 was afterwards followed in several Turkish cases in which it was not possible to determine17 that an individual had been intentionally killed by the state’s security forces. However, this was not in itself sufficient to absolve the State from its responsibility, inherent in Article 2, to conduct an investigation capable of determining the circumstances leading up to the deprivation of life in the particular case. This is because, as the ECtHR emphasises, the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of the state agents for deaths occurring under their responsibility.18 On the same principles, the procedural obligation is applicable in cases of deprivation

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ECtHR (Judgment) McCann and Others v. the United Kingdom [gc], no. 18984/91, 27 September 1995, para. 161; ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 230. In assessing the evidence related to the use of force by the state agents the ECtHR adopts the standard of proof “beyond reasonable doubt” which may directly follow from the circumstances of the case or from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ECtHR (Judgment) Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, para. 161). See further: ECtHR (Judgment) Kaya v. Turkey, no. 22729/93, 19 February 1998, para. 77; ECtHR (Judgment) Demiray v. Turkey, no. 27308/95, 21 November 2000, para. 43; ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 264; ECtHR (Judgment) Damayev v. Russia, no. 36150/04, 29 May 2012, para. 61. ECtHR (Judgment) Kaya v. Turkey, no. 22729/93, 19 February 1998, paras. 78 and 87; ECtHR (Judgment) Güleç v. Turkey, no. 21593/03, 27 July 1998, paras. 77–78, 81; ECtHR (Judgment) Ergi v. Turkey, no. 23818/94, 28 July 1998, paras. 78 and 82; ECtHR (Judgment) Oğur v. Turkey,­21594/93, 20 May 1999, paras. 83–84 and 88; ECtHR (Judgment) Ahmet Ozkan and Others v. Turkey, no. 21689/93, 6 April 2004, paras. 307–310; ECtHR (Judgment) Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, 26 July 2005, para. 114.

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of life by state agents during any organised police operation,19 as well as any spontaneous police action.20 It should be noted in this context that there are two concurrent rationales of the procedural obligation, as explained in the Nikolova and Velichkova v. Bulgaria case. On the one hand, “the effective investigation required under ­Article 2 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts,” and on the other hand, as already underlined in McCann, “to secure the effective implementation of the domestic laws which protect the right to life … and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.”21 The former places emphasis on the general relevancy of an adequate procedural response in the society established on the basis of the rule of law, while the latter is more the individually-based requirement of reinforcement of the substantive human rights protection. The ECtHR further elaborated on this dual rationale of the criminal-law protection of the right to life by explaining that “Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.” Moreover, it “requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another.”22 The conceptual approach to the rationale of the procedural obligation in the sphere of criminal-law protection, as conceived in Nikolova and Velichkova, 19

20

21 22

ECtHR (Judgment) Bubbins v. the United Kingdom, no. 50196/99, 17 March 2005, para. 137; ECtHR (Judgment) Huohvanainen v. Finland, no. 57389/00, 13 March 2007, para. 95; ­ECtHR (Judgment) Celniku v. Greece, no. 21449/04, 5 July 2007, para. 60; ECtHR (Judgment) G ­ iuliani and Gaggio v. Italy [gc], no. 23458/02, 24 March 2011, para. 298; ECtHR (Judgment) Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, 20 December 2011, para. 268. ECtHR (Judgment) Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, 6 July 2005, para. 110.; ECtHR (Judgment) Alikaj and Others v. Italy, no. 47357/08, 29 March 2011, para. 94 (note a somewhat different language in conceptualising the applicability of the procedural obligation); ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 102; ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 321. ECtHR (Judgment) Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, para 57. Loc. cit.

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was consistently followed in several subsequent cases concerning killings by state agents.23 2.1.2

Deaths Related to Wide-Scale Operations of Military and Security Forces The same conceptual approach observed above in the cases of intentional or unintended deprivations of life by state security forces in ordinary security actions was followed in cases concerning fatalities in the wide-scale operations by military and security forces. In a number of cases concerning the Turkish government’s wide-scale military and police anti-terrorist actions, the ECtHR stressed that Article 2 mandated an investigation into any fatalities. This was essential for securing the effective implementation of the domestic laws that protect the right to life and for ensuring accountability of those responsible.24 This applies to instances of deprivations of life following bombardments,25 enforced disappearances,26 or armed clashes,27 as well as search-and-arrest raids.28 Similarly, the ECtHR has found the procedural obligation under Article 2 to be applicable to the fatalities related to the Russian government’s activities in the North Caucasus.29 This in particular includes deaths related to mass 23

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27 28

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ECtHR (Judgment) Mojsijew v. Poland, no. 11818/02, 24 March 2009, para. 53; ECtHR (Judgment) Ghimp and Others v. the Republic of Moldova, no. 32520/09, 30 October 2012, para. 44. See further cases raising other issues under Article 2: ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, para. 243; ECtHR (Judgment) Fedorchenko and Lozenko v. Ukraine, no. 387/03, 20 September 2012, para. 43; ECtHR (Judgment) Eduard Popa v. the Republic of Moldova, no. 17008/07, 12 February 2013, para. 47. ECtHR (Judgment) Menteşe and Others v. Turkey, no. 36217/97, 18 January 2005, para. 50; ECtHR (Judgment) Akkum v. Turkey, no. 21894/93, 24 March 2005, para. 249. ECtHR (Judgment) Benzer and Others v. Turkey, no. 23502/06, 12 November 2013, paras. 186–198; ECtHR (Judgment) Şirin Yilmaz v. Turkey, no. 35875/97, 29 July 2004, para. 77. ECtHR (Judgment) Ertak v. Turkey, no. 20764/92, 9 May 2000, para. 134; ECtHR (Judgment) Taş v. Turkey, no. 24396/94, 14 November 2000, para. 68; ECtHR (Judgment) Akdeniz and Others v. Turkey, no. 23954/94, 31 May 2001, para. 90; ECtHR (Judgment) Bozkir and Others v. Turkey, no. 24589/04, 26 February 2013, para. 56. ECtHR (Judgment) Ergi v. Turkey, no. 23818/94, 28 July 1998, para. 82; ECtHR (Judgment) Akpinar and Altun v. Turkey, no. 56760/00, 27 February 2007, para. 35. ECtHR (Judgment) Ahmet Ozkan and Others v. Turkey, no. 21689/93, 6 April 2004, paras. 309–310; ECtHR (Judgment) Erdogan and Others v. Turkey, no. 19807/92, 25 April 2006, para. 88; ECtHR (Judgment) Gülen v. Turkey, no. 28226/02, 14 October 2008, para. 40; ECtHR (Judgment) Meryem Çelik and Others v. Turkey, no. 3598/03, 16 April 2013, para. 73; ECtHR (Judgment) Gülbahar Özer and Others v. Turkey, no. 44125/06, 2 July 2013, para. 59. See further: P. Leach, “The Chechen Conflict: Analysing the Oversight of the European Court of Human Rights”, 6 European Human Rights Law Review (2008), pp. 732–761.

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killings and extra-judicial executions,30 enforced disappearances,31 and bombardments,32 including deaths from landmines.33 In these cases, as well as in the Turkish cases cited above, the ECtHR reiterated that the essential purpose of an investigation into the circumstances of the case is to secure the effective implementation of the domestic laws protecting the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. It accordingly follows that the procedural obligation in such instances assumes the above-observed precepts of general relevancy and individual-based considerations. The procedural obligation is further applicable in respect of deaths in the context of armed conflicts,34 including the echr Member States participation in external military missions.35 All these instances, as the ECtHR stressed in Al-Skeini and Others, irrespective of the difficult security conditions, do not mean that the procedural obligation under Article 2 ceases to apply. What may differ, however, are standards for the assessment of the effectiveness of such an obligation, which is clearly a matter different from its applicability.36 30

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33 34

35 36

ECtHR (Judgment) Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005, para. 153; ECtHR (Judgment) Estamirov and Others v. Russia, no. 60272/00, 12 October 2006, para. 85; ECtHR (Judgment) Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/00, 26 July 2007, para. 158; ECtHR (Judgment) Goygova v. Russia, no. 74240/01, 4 October, 2007, para. 76; ECtHR (Judgment) Inderbiyeva v. Russia, no. 56765/08, 27 March 2012, para. 100. ECtHR (Judgment) Bazorkina v. Russia, no. 69481/01, 27 July 2006, para. 117; ECtHR (Judgment) Imakayeva v. Russia, no. 7615/02, 9 November 2006, para. 146; ECtHR (Judgment) Luluyev and Others v. Russia, no. 69480/01, 9 November 2006, para. 90; ECtHR (Judgment) Baysayeva v. Russia, no. 74237/01, 5 April 2007, para. 115; ECtHR (Judgment) Dzhabrailov and Others v. Russia, nos. 8620/09, 11674/09, 16488/09, 21133/09, 36354/09, 47770/09, 54728/09, 25511/10 and 32791/10, 27 February 2014, paras. 316–321. ECtHR (Judgment) Isayeva v. Russia, no. 57950/00, 24 February 2005, paras. 209–210; ECtHR (Judgment) Isayeva, Yusupova and Bazayeva v. Russia, nos. 57947/00, 57948/00 and 57949/00, 24 February 2005, paras. 208–209; ECtHR (Judgment) Taysumov and Others v. Russia, no. 21810/03, 14 May 2009, para. 98; ECtHR (Judgment) Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010, para. 204; ECtHR (Judgment) Esmukhambetov and Others v. Russia, no. 23445/03, 29 March 2011, para. 115; ECtHR (Judgment) Damayev v. Russia, no. 36150/04, 29 May 2012, para. 78. ECtHR (Judgment) Albekov and others v. Russia, no. 68216/01, 9 October 2008, para. 94. ECtHR (Judgment) Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011, paras. 63–71; ECtHR (Judgment) Jularić v. Croatia, no. 20106/06, 20 January 2011, para. 41; ECtHR (Judgment) Janowiec and Others v. Russia [gc], nos. 55598/07 and 29520/09, 21 October 2013, para. 151. ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 07 July 2011, para. 163. Ibid., para. 164.

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2.1.3 Enforced Disappearances A particularly grave breach of human rights entailing the state’s procedural obligation is the phenomenon of enforced disappearances. The procedural obligation in this context commonly arises in the context of actions and operations of the military and security forces, notably related to the Turkish and Russian security forces’ actions in south-east Turkey and North Caucasus respectively.37 However, it may also arise in some rather specific situations such as a non-refoulement context where an individual disappears following his purported forcible abduction and rendition.38 The relevant principles concerning the procedural obligation under Article 2 related to complaints of enforced disappearances in life-threatening circumstances were clarified in the case of Varnava and Others v. Turkey, concerning the Turkish military operations in northern Cyprus in 1974 and the continuing situation following that military intervention.39 The ECtHR indicated that the procedural obligation arises where individuals, last seen in the custody of agents of the state, subsequently disappeared in a life-threatening context. It may also arise when the enforced disappearance in life-threatening circumstances occurred in an area within the exclusive control of the authorities of the state,40 irrespective of whether it is apparent that the disappearance was caused by an agent of the state.41 Likewise, as underlined in the subsequent case-law, for the procedural obligation to arise under Article 2 it is sufficient to establish that the disappearance occurred in “life-threatening circumstances,”42 irrespective of whether the death of an individual has been confirmed or whether it can be presumed.43 In assessing the evidence concerning the circumstances of an enforced disappearance, the ECtHR has consistently adopted the standard of proof “beyond reasonable doubt” which may follow from direct evidence or, in the absence of such evidence, from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. This ­standard 37 38 39 40 41 42 43

P. Leach, Taking a Case to the European Court of Human Rights (Oxford, Oxford University Press 2011), p. 194. ECtHR (Judgment) Mukhitdinov v. Russia, no. 20999/14, 21 May 2015, para. 59 (note that the case was examined under Article 3 echr). ECtHR (Judgment) Varnava and Others v. Turkey [gc], nos. 16064/90 et al., 18 September 2009. Ibid., paras. 181 and 184. ECtHR (Judgment) Osmanoğlu v. Turkey, no. 48804/99, 24 January 2008, para. 87. ECtHR (Judgment) Toğcu v. Turkey, no. 27601/95, 31 May 2005, para. 112. ECtHR (Judgment) Varnava and Others v. Turkey [gc], nos. 16064/90 et al., 18 September 2009, para. 148.

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of proof can be understood as the burden resting on the state authorities to ­provide a satisfactory and convincing explanation for the fate of a person whenever the events in issue lie wholly, or in large part, within their exclusive knowledge. This is principally the case of persons within the authorities’ control in custody, or in the situation where persons are found injured or dead, or who have disappeared, in an area within the exclusive control of the state authorities and there is prima facie evidence that the state may be involved.44 The essential purpose of compliance with the procedural obligation in cases of enforced disappearances by conducting an effective investigation into the circumstances of the case is “to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility.”45 The special nature of the procedural obligation in cases of enforced disappearances is in the fact that disappearances are a distinct phenomenon, characterised by ongoing uncertainty and unaccountability, as well as a lack of information or even a deliberate concealment and obfuscation of what has occurred. Therefore, the state will be under the procedural obligation as long as the fate of the person is unaccounted for.46 In addition, a particularity of cases of enforced disappearances lies in an inextricable link between the substantive positive protection and the procedural obligation in this context. Indeed, very often a failure to provide a rapid and effective procedural response to an arguable complaint of enforced disappearance leads to a missed opportunity to protect the right to life of an abducted person. In such instances, the ECtHR has held that states are required to take operational measures to protect the right to life of the disappeared persons since following their abductions their lives are at a real and immediate risk. What is at issue in this context is not the duty of the domestic authorities to prevent the abductions which have already taken place but to take preventive operational measures to protect the right to life.47 2.1.4 Deaths in Custody and State Institutions The state’s procedural obligation arises in cases of suspicious deaths in custody, including other state institutions, such as the army. The case-law of the ECtHR 44 45 46 47

Ibid., paras. 181–184. Ibid., para. 191. Ibid., para. 148. ECtHR (Judgment) Turluyeva v. Russia, no. 63638/09, 20 June 2013, para. 97; ECtHR (Judgment) Makayeva v. Russia, no. 37287/09, 18 September 2014, para. 100; ECtHR (Judgment) Ibragim Tsechoyev v. Russia, no. 18011/12, 21 June 2016, paras. 72–74.

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in this respect developed in particular in relation to suicides, deaths resulting from the actions or omissions of the authorities, or deaths caused by third parties. In all instances, however, the procedural obligation entails the requirement of an official effective investigation and, if appropriate, prosecution.48 With regard to suicides in custody, the procedural obligation is construed from the general concept of the state’s positive obligations. Under Article 2 the state is obliged to provide an adequate legislative framework, backed-up by effective enforcement measures, for the protection of life. Where, however, a loss of life has occurred irrespective of the state’s compliance with its (substantive) positive obligations, the state is obliged “to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished.”49 Since death by suicide in custody could be substantively viewed as an unintentional omission of the state authorities, in the Trubnikov case the ECtHR assessed the infringement of the right to life or to physical integrity which was not caused intentionally by the authorities and held that in such instances the positive obligation required the setting up of an “effective judicial system” but did not necessarily require criminal proceedings to be brought in every case. Accordingly, a procedural response may be adequate, i.e., the procedural obligation may be satisfied if civil, administrative or even disciplinary remedies were available to the victims. However, the ECtHR observed that in practice the true circumstances of the death in custody are, or may be, largely confined within the knowledge of state officials or authorities. It therefore held that the applicable principles “are rather to be found in those which the Court has already had occasion to develop in relation notably to the use of lethal force” rather than negligent deprivations of life.50 This same approach was followed in a number of cases concerning suicides of conscripts during military service. Here, too, just like with persons in custody, the state authorities are under a duty to protect conscripts, who are within their exclusive control and, since any events in the army lie wholly or largely within the exclusive knowledge of the authorities, to conduct an official

48 49 50

ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, paras. 73–74. ECtHR (Judgment) Trubnikov v. Russia, no. 49790/99, 5 July 2005, paras. 85. Ibid., paras. 86–87; see further: ECtHR (Judgment) Yasin Ateş v. Turkey, no. 30949/96, 31 May 2005, paras. 94–95; ECtHR (Judgment) De Donder and De Clippel v. Belgium, no. 8595/06, 06 December 2011, paras. 61 and 85; ECtHR (Judgment) Çoşelav v. Turkey, no. 1413/07, 09 October 2012, para. 71.

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effective­investigation into the alleged suicide.51 This approach accordingly extends to the suicides of military officers.52 Various actions and omissions of the domestic authorities with a fatal outcome in the context of custody, or some other form of institutionalisation, also give rise to the state’s procedural obligation under Article 2. This is, in general, the obligation of an effective official investigation which must lead to the identification of those responsible and holding them to account.53 The essential purpose of that obligation lies in enforcing the domestic laws which protect the right to life and ensuring the accountability of the state agents for deaths occurring under their responsibility. However, the considerations of general relevancy of maintaining public confidence in the authorities’ observance of the rule of law and preventing any appearance of collusion in or tolerance of unlawful acts, are also of great importance.54 The procedural obligation is particularly important in the context of custody and other forms of institutionalisation, since it bears significance for the assessment of the state’s compliance with the substantive requirements under Article 2. Specifically, the ECtHR has held that where an individual is taken into custody in good health and is found to be injured on release, it is incumbent on the state to provide a plausible explanation of how those injuries were

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ECtHR (Decision) Stern v. France, no. 70820/01, 11 October 2005; ECtHR (Judgment) Sergey Shevchenko v. Ukraine, no. 32478/02, 4 April 2006, paras. 63–76 (note that in the general principles of this case the ECtHR refers to the procedural obligation concerning the cases of unintended fatalities, but then, in its application of those principles to the case at issue, it cites only the case-law relevant to the procedural obligation in respect of the use of lethal force including the above-cited Trubnikov case, where, in the context of a suicide in detention, the ECtHR held that the procedural obligation relevant to the use of lethal force applies in such instances); ECtHR (Judgment) Salgın v. Turkey, no. 46748/99, 20 February 2007, paras. 85–86; ECtHR (Judgment) Hasan Çalişkan and Othres v. Turkey, no. 13094/02, 27 May 2008, para. 49; ECtHR (Judgment) Anusca v. Moldova, no. 24034/07, 18 May 2010, para. 38; ECtHR (Judgment) Shumkova v. Russia, no. 9296/06, 14 February 2012, paras. 106– 109; ECtHR (Judgment) Mosendz v. Ukraine, no. 52013/08, 17 January 2013, paras. 96–110; ECtHR (Judgment) Perevedentsevy v. Russia, no. 39583/05, 24 April 2014, paras. 93, 102 and 104; ECtHR (Judgment) Tikhonova v. Russia, no. 13596/05, 30 April 2014, paras. 77–80. ECtHR (Judgment) Beker v. Turkey, no. 27866/03, 24 March 2009, para. 42. ECtHR (Decision) Fonseca Mendes v. Spain, no. 43991/02, 1 February 2005; ECtHR (Judgment) Eremiasova and Pechova v. the Czech Republic, no. 23944/04, 16 February 2012, paras. 130–132. ECtHR (Judgment) Mojsiejew v. Poland, no. 11818/02, 24 March 2009, para. 53. Note the same reasoning as in the above-observed judgment of Nikolova and Velichkova v. Bulgaria (no. 7888/03, 20 December 2007, para 57).

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caused.55 These principles are relevant for all suspicious deaths in custody irrespective of whether it was established that the death was caused by an action or omission of the state authorities.56 In cases of the deprivation of life of a person in custody, or otherwise under the control of the state authorities, by a third private-party perpetrator, the ECtHR has explained that the procedural obligation applies with full stringency requiring the states “to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility.” It is therefore irrelevant whether the state agents were involved by acts or omissions in the events leading up to the death, as the state is in any case

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ECtHR (Judgment) Timurtas v. Turkey, no. 23531/94, 13 June 2000, para. 82; ECtHR (Judgment) Salman v. Turkey [gc], no. 21986/03, 27 June 2000, para. 99; ECtHR (Judgment) Zubayrayev v. Russia, no. 67797/01, 10 January 2008, para. 72; ECtHR (Judgment) Predica v. Romania, no. 42344/07, 7 June 2011, para. 53; ECtHR (Judgment) Matayeva and Dadayeva v. Russia, no. 49076/06, 19 April 2011, para. 84; ECtHR (Judgment) Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [gc], no. 47848/08, 17 July 2014, para. 131. ECtHR (Judgement) Salman v. Turkey [gc], no. 21986/93, 27 June 2000, paras. 102–105 (suspicious death under the circumstances of a heart attack); ECtHR (Judgment) Tanribilir v. Turkey, no. 21422/93, 16 November 2000, para. 83 (suicide by hanging in the cell); ECtHR (Judgment) Slimani v. France, no. 57671/00, 27 July 2004, paras. 29–30 (lack of medical assistance in detention); ECtHR (Judgment) A.A. and Others v. Turkey, no. 30015/96, 27 July 2004, paras. 52–53 (suicide by hanging in the cell); ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, paras. 102–103 (death by fall from a window of a detainee); ECtHR (Judgment) Mojsiejew v. Poland, no. 11818/02, 24 March 2009, para. 53 (asphyxiation in a sobering-up centre); ECtHR (Judgment) Jasinskis v. Latvia, no. 45744/08, 21 December 2010, paras. 71–73 (lack of medical assistance it the police custody); ECtHR (Judgment) Mižigárová v. Slovakia, no. 74832/0, 14 December 2010, para. 91 (alleged self-shooting of a detainee with a police gun; note that the prosecution had been instituted in the criminal court against the police officer whose weapon had been used for the shooting but a violation of the procedural limb of Article 2 echr was found on account of the failure to investigate the allegations of homicide); ECtHR (Judgment) Tsintsabadze v. Georgia, no. 35403/06, 15 February 2011, paras. 75–76 (concerning alleged cover-up of a homicide in prison); ECtHR (Judgment) Predica v. Romania, no. 42344/07, 7 June 2011, para. 65 (death following an eplileptic seizure); ECtHR (Judgment) Eremiasova and Pechova v. the Czech Republic, no. 23944/04, 16 February 2012, paras. 130–132 (concerning the alleged suicide by jumping through the window of a detained suspect); ECtHR (Judgment) Kleyn and Aleksandrovich v. Russia, no. 40657/04, 03 May 2012, para. 52 (suicide by jumping thought the window of a detainee); ECtHR (Judgment) Keller v. Russia, no. 26824/04, 17 October 2013, paras. 92–93 (suicide by jumping thought the window of a detainee); ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, paras. 73–74 (alleged suicide by jumping through the window of a detainee); ECtHR (Judgment)

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under an obligation to initiate and carry out an investigation which fulfils the requirements of the echr.57 2.1.5 Suicides The procedural obligation in the event of suicide has already been addressed in the context of suspicious deaths in custody or state institutions. However, such an obligation exists in other cases in which the death was caused by suicide, particularly in circumstances potentially engaging the responsibility of state agents.58 The procedural obligation in this context is primarily “a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or ­otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished.” It primarily relates to an obligation to carry out an official effective investigation into the circumstances surrounding the case, which must aim at securing the effective implementation of the domestic laws which protect the right to life and ensuring the accountability of those responsible.59 The procedural obligation will also exist in the event of a suicide, irrespective of whether the question of the responsibility of state agents has arisen in the case at issue. In such instances, the procedural obligation flows from the general positive obligation of the state to “secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.”60

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Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [gc], no. 47848/08, 17 July 2014, paras. 132–133 (death in a psychiatric hospital – note that the ECtHR refers to the general principles concerning medical negligence which do not always require recourse to criminal law. At the same time, the ECtHR refers to Nikolova and Velichkova v. Bulgaria holding that “[o]n the other hand, the national courts should not permit life-­endangering offences to go unpunished. This is essential for maintaining public ­confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts”); ECtHR (Judgment) Gorelov v. Russia, no. 49072/11, 9 January 2014, paras. 43, 50–51 (infection by hiv virus in prison). ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, paras. 69 and 74; ECtHR (Judgment) Volk v. Slovenia, no. 62120/09, 13 December 2012, paras. 97–98. ECtHR (Judgment) Mikayil Mammadov v. Azerbaijan, no. 4762/05, 17 December 2009, para. 122 (concerning the suicide by self-immolation). Ibid., paras. 101, 103 and 122. ECtHR (Judgment) Vasîlca v. the Republic of Moldova, no. 69527/10, 11 February 2014, para. 27 (alleged suicide by falling from a window).

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Accordingly,­suicide, like any other suspicious death, must lead to an investigation which must be capable of elucidating the circumstances of the case and, if applicable, the identification of those responsible with a view to their punishment. The essential purpose of such an investigation is to uphold the provisions of the domestic law protecting the right to life.61 2.1.6 Deaths Caused by Hazards In the case of Öneryildiz v. Turkey,62 its landmark case on the question of procedural obligations with regard to deaths caused by hazards – in the concrete case a landslide caused by methane explosion – the ECtHR examined the procedural obligation as the question of the “judicial response required in the event of alleged infringements of the right to life.” In particular, the ECtHR observed the general principle under which a duty of the state is to ensure an adequate procedural response by implementing the legislative and administrative framework set up to protect the right to life and repressing and punishing any breaches of that right. It also held that applicable principles concerning the procedural obligation in cases involving natural disasters are to be found in those which had already been developed in relation to the use of lethal force.63 The similarity between cases of homicide and those involving deaths caused by natural disasters lies in two aspects. Firstly, allegations of homicide, just like deaths caused by natural disasters attributable to the grave omissions of state authorities, must normally give rise to criminal liability; and secondly, the true circumstances of the death are, or may be, largely confined within the knowledge of state officials or authorities. This is particularly true in the context of dangerous activities leading to deprivations of life by events occurring under the state responsibility “which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.”64 In such cases, the procedural obligation involves the requirement for an independent and impartial official investigation and, if appropriate, prosecution and punishment of those responsible aimed at ascertaining the circumstances of the incident and any shortcomings in the operation of the regulatory system, as well as identifying the state officials or authorities involved in whatever 61 62 63

64

Ibid., para. 28. ECtHR (Judgment) Öneryildiz v. Turkey [gc], no. 48939/99, 30 November 2004. See for a different approach: ECtHR (Decision) Murillo Saldias and Others v. Spain, no 76973/01, 28 November 2006; ECtHR (Judgment) Hayri Aslan and Others v. Turkey, no. 18751/05, 30 November 2010. Ibid., paras. 91–93.

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capacity in the chain of events in issue.65 The same conceptual approach was applied in respect of deaths and threat to life caused by exposure to asbestos,66 an industrial activity of a large-scale evacuation of water from a water reservoir,67 mudslide and earthquake disasters,68 train accidents,69 an abandoned explosive device,70 a mortar shell explosion,71 work-related accidents,72 a shipping accident,73 and an accident during the police training exercise.74 However, in the context of purely accidental deaths or serious injuries, the ECtHR has considered the states’ procedural obligations in the wider context of their substantive positive duties to safeguard the right to life of those under their jurisdiction. Such duty presupposes a more general procedural requirement of “having in place an effective independent judicial system securing the availability of legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim” without necessarily resorting to an official criminal investigation and prosecution.75 This could therefore be distinguished as a distinct procedural requirement to

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Ibid., paras. 94–96. ECtHR (Judgment) Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, 24 July 2014, paras. 121–122. 67 ECtHR (Judgment) Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, 28 February 2012, paras. 188–193. 68 EtHCR (Judgment) Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008, paras. 138–145; ECtHR (Judgment) M. Özel and Others v. Turkey, nos. 14350/05, 15245/05 and 16051/05, 17 November 2015, paras. 188–189. 69 ECtHR (Decision) Bone v. France, no. 69869/01, 1 March 2005; ECtHR (Judgment) Kalender v. Turkey, no. 4314/02, 15 December 2009, paras. 51–54. 70 ECtHR (Decision) Evcil v. Turkey, no. 46260/99, 6 April 2004. 71 ECtHR (Judgment) Oruk v. Turkey, no. 33647/04, 4 February 2014, paras. 42–52. 72 ECtHR (Judgment) Pereira Henriques v. Luxembourg, no. 60255/00, 9 May 2006, ­paras. ­55–57; ECtHR (Judgment) Gina Ionescu v. Romania, no. 15318/09, 11 December 2012, para. 37. 73 ECtHR (Decision) Leray, Guilcher, Ameon, Margue and Mad v. France, no. 44617/98, 16 ­January 2001. 74 ECtHR (Judgment) Lovyginy v. Ukraine, no. 22323/08, 23 June 2016, para. 102. 75 ECtHR (Judgment) Ciechońska v. Poland, no. 19776/04, 14 June 2011, paras. 59–67 (death caused by a fallen tree); see further, ECtHR (Decision) Furdik v. Slovakia, no. 42994/05, 2 December 2008 (death caused while climbing on a mountain); ECtHR (Judgment) Kudra v. Croatia, no. 13904/07, 18 December 2012, paras. 100–101 (fatal injury on a construction site); ECtHR (Judgment) Banel v. Lithuania, no. 14326/11, 18 June 2013, para. 70 (death after collapse of a balcony); ECtHR (Judgment) Kostovi v. Bulgaria, no. 28511/11, 15 April 2014, paras. 24–26 (work-related death on a construction site).

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the general obligation of an official effective investigation arising in the context of deaths caused by hazards. 2.1.7 Road Accidents The procedural obligation in the context of road accidents is construed from the general concept of positive obligations under Article 2. In particular, states have a positive obligation “to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life, in context of any activity, whether public or not, in which the right to life may be at stake” which accordingly extends to the sphere of road safety.76 This implies that in case of a life-threatening injury or death caused by a road accident, an effective independent judicial system must be put in place so as to ensure enforcement of the above-mentioned legislative framework by elucidating the facts of the case, holding accountable those at fault and providing appropriate redress.77 This is therefore principally the requirement of an adequate regulatory framework including an effective judicial system, which does not necessarily have to operate in the sphere of criminal justice. Nevertheless, if the circumstances of a road accident suggest that a death has occurred in suspicious circumstances, the obligation of an official effective investigation and, if applicable, prosecution will arise.78 The central purpose of such a procedural obligation is to secure the effective implementation of the domestic laws which protect the right to life.79 2.1.8 Medical Negligence Another area in which the procedural obligation ordinarily derives from the general concept of positive obligations relates to deaths caused by medical negligence. In general, the ECtHR has stressed that where a state has made adequate provisions for securing high professional standards in the area of health care, matters such as an error of judgment on the part of a health professional 76 77

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ECtHR (Judgment) Anna Todorova v. Bulgaria, no. 23302/03, 24 May 2011, para. 72. ECtHR (Judgment) Zubkova v. Ukraine, no. 36660/08, 17 October 2013, para. 35; see further, ECtHR (Decision) Rajkowska v. Poland, no. 37393/02, 27 November 2007; ECtHR (Judgment) Antonov v. Ukraine, no. 28096/04, 3 November 2011, paras. 44–46; ECtHR (Judgment) Igor Shevchenko v. Ukraine, no. 22737/04, 12 January 2012, para. 56; ECtHR (Judgment) Sergiyenko v. Ukraine, no. 47690/07, 19 April 2012, paras. 48–50; ECtHR (Judgment) Prynda v. Ukraine, no. 10904/05, 31 July 2012, paras. 51–53. ECtHR (Judgment) Anna Todorova v. Bulgaria, no. 23302/03, 24 May 2011, para. 73. ECtHR (Decision) Al Fayed v. France, no. 38501/02, 27 September 2007, paras. 73–75.

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or negligent coordination among health professionals in the treatment of a particular patient cannot be regarded as sufficient in themselves to call the state to account from the perspective of its positive obligations to protect life. However, the positive obligations require the states to make regulations compelling public and private hospitals to adopt appropriate measures for the protection of patients. This also implies the existence of an effective independent judicial system capable of elucidating the circumstances of a patient’s death and holding those responsible to account.80 This is a more general procedural requirement of an effective judicial system rather than a requirement of an official investigation and prosecution.81 Emphasis is therefore on the functioning of the regulatory framework rather than the upholding of individual rights through the application of criminallaw mechanisms. Nevertheless, in Asiye Genç v. Turkey the ECtHR stressed that, generally speaking, whenever death is a result of an erroneous judgment or negligence imputable to the authorities, the absence of a criminal prosecution of those responsible may lead to a violation of the procedural obligation, irrespective of the effectiveness of any other legal avenue.82 Although the procedural requirement in medical negligence cases is primarily a mechanism for ensuring the adequate protection of the right to life, the ECtHR has also recognised an important aspect of the general relevancy involved. Specifically, this public interest was conceived as involving “the knowledge of the facts and of possible errors committed in the course of medical care [which] are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors.”83 80 ECtHR (Judgment) Byrzykowski v. Poland, no. 11562/05, 27 June 2006, para. 104. 81 Kamber, supra n. 2.250; see further, ECtHR (Decision) Erikson v. Italy, no. 37900/97, 26 October 1999; ECtHR (Decision) Powell v. the United Kingdom, no. 45305/99, 4 May 2000; ECtHR (Judgment) Calvelli and Ciglio v. Italy, no. 32967/96, 17 January 2002, para. 49; ECtHR (Judgment) Vo v. France, no. 53924/00, 8 July 2004, para. 89; ECtHR (Judgment) Šilih v. Slovenia, no. 71463/01, 9 April 2009, paras. 192–196; ECtHR (Judgment) Oyal v. Turkey, no. 4864/05, 23 March 2010, para. 66; ECtHR (Judgment) Z. v. Poland, no. 46132/08, 13 November 2012, paras. 93–95; echr; (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, paras. 87–88; ECtHR (Judgment) Süleyman Ege v. Turkey, no. 45721/09, 25 June 2013, paras. 53–55; ECtHR (Judgment) Valeriy Fuklev v. Ukraine, no. 6318/03, 16 January 2014, para. 65. 82 ECtHR (Judgment) Asiye Genç v. Turkey, no. 24109/07, 27 January 2015, para. 73. 83 ECtHR (Judgment) Byrzykowski v. Poland, no. 11562/05, 27 June 2006, para. 117. See, however, a different understanding of the problem in: A. Dekker, “Prosecuting professional mistake: Secondary victimization and a research agenda for criminology”, 4(1) International Journal of Criminal Justice Sciences (2009), pp. 63–64.

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The nature of the procedural obligation differs in the particular context of medical malpractice in prisons. In particular, the ECtHR has held that in cases of deaths or severe threat to life allegedly caused by medical malpractice in the prison context, an effective official investigation is the most appropriate procedural response.84 Accordingly, the above considerations concerning the general functioning of the regulatory framework have secondary importance to the intended aim of human rights protection through the effective application of criminal-law mechanisms. 2.1.9 Killings by Private Parties and Other Suspicious Deaths Faced with the epistemological limitations in elucidating complex and sometimes confusing circumstances surrounding the death of an individual, ­implicating to an extent the state authorities although without allowing any sufficiently clear and firm conclusions to that effect, the ECtHR extended the scope of the procedural obligation to all cases which could be determined as “suspicious deaths.” In particular, in the Yaşa case, having been unable to conclude that the applicant’s relative had been killed by the state agents, the ECtHR explained that the implied procedural obligation under Article 2 arose whenever individuals had been killed as a result of the use of force, irrespective of whether it had been established that the killing had been caused by an agent of the state.85 Accordingly, after Yaşa, conceptually the same approach was followed in several other similar Turkish86 and other cases.87 In all such instances with a fatal outcome, or where an individual has sustained life-threatening injuries in suspicious circumstances, irrespective of whether the perpetrators were private persons or state agents or are unknown, 84

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echr (Judgment) Gülay Çetin v. Turkey, no. 44084/10, 5 March 2013, paras. 85–87; echr (Judgment) Salakhov and Islyamova v. Ukraine, no. 28005/08, 14 March 2013, paras. 186–187; ECtHR (Judgment) Gorelov v. Russia, no. 49072/11, 9 January 2014, para. 51. ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, paras. 98–100. ECtHR (Judgment) Tanrikulu v. Turkey [gc], no. 23763/94, 8 July 1999, paras. 101–103; ECtHR (Judgment) Kiliç v. Turkey, no. 22492/93, 28 March 2000, paras. 64 and 78; ECtHR (Judgment) Mahmut Kaya v. Turkey, no. 22535/93, 28 March 2000, paras. 91 and 102; ECtHR (Judgment) Demiray v. Turkey, no. 27308/95, 21 November 2000, paras. 45, 48– 50; ECtHR (Judgment) Nuray Sen v. Turkey (No. 2), no. 25354/94, 30 March 2004, para. 174; ECtHR (Judgment) Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010, para. 76. ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, para. 88; ECtHR (Judgment) Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, para. 65.

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the procedural obligation arises as a requirement of an official effective investigation capable of elucidating the circumstances of the case with a view to punishment of those responsible. The essential purpose of such an obligation is to secure the effective implementation of the laws which protect the right to life.88 However, if the death or life-threatening injury occurs in the circumstances suggesting negligence, the procedural obligation becomes a more general procedural requirement of the existence of an adequate regulatory framework including an effective judicial system by which the cause of the deprivation of life can be established and those guilty punished. The essential purpose of that obligation also lies in ensuring the enforcement of the provisions protecting the right to life, although such enforcement does not necessarily need to be within the sphere of criminal law.89 One of the distinctive examples in the ECtHR case-law concerning privateparty violence resulting in death or life-threatening injuries are instances of domestic violence. In such cases, states are also obliged to secure an efficient and independent judicial system by which the circumstances of the case can be elucidated and those responsible held to account, which principally concerns recourse to criminal law.90 That requirement, nevertheless, according to the above-observed general rules, may differ in cases concerning the allegations of negligence of the state authorities in protecting an individual from domestic violence.91 88

ECtHR (Decision) Menson v. the United Kingdom, no. 47916/99, 6 May 2003; ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 110; ECtHR (Judgment) Angelova and Iliev v. Bulgaria, no. 55523/00, 26 July 2007, para. 94; ECtHR (Judgment) Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, paras. 191–192; ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 288; ECtHR (Judgment) Iorga v. Moldova, no. 12219/05, 23 March 2010, paras. 26 and 27; ECtHR (Judgment) Zashevi v. Bulgaria, no. 19406/05, 2 December 2010, para. 56; ECtHR (Judgment) Tsechoyev v. Russia, no. 39358/05, 15 March 2011, para. 145; ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, paras. 241–242. 89 ECtHR (Judgment) Mastromatteo v. Italy [gc], no. 37703/97, 24 October 2002, ­paras. ­89–91; ECtHR (Judgment) Maiorano and Others v. Italy, no. 28634/06, 15 December 2009, para.  123; ECtHR (Judgment) Berü v. Turkey, no. 47304/07, 11 January 2011, paras. 40–41; ECtHR (Judgment) Yabansu and Others v. Turkey, no. 43903/09, 12 November 2013, paras. 100–101. 90 ECtHR (Judgment) Opuz v. Turkey, no. 33401/02, 9 June 2009, para. 150; ECtHR (Judgment) M.G. v. Turkey, no. 646/10, 22 March 2016, paras. 79–80. 91 ECtHR (Judgment) Branko Tomašić and Others v. Croatia, no. 46598/06, 15 January 2009, paras. 62–64.

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2.2 Applicability of the Procedural Obligation under Article 3 echr Article 3 is applicable only to those interferences with the integrity of a person which attain a minimum level of severity required for them to fall within the concepts of torture and inhuman or degrading treatment or punishment.92 As the ECtHR has constantly held, the assessment of this minimum level is relative and depends on all the circumstances of a case, in particular the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.93 In the ECtHR case-law torture is considered to be deliberate inhuman treatment causing very serious and cruel suffering which has a purposive element of, inter alia, obtaining information, inflicting punishment or intimidating.94 Torture is considered to be grave physical violence inflicted by the state authorities,95 such as “Palestinian hanging” (suspension of a person, previously stripped naked, by his arms tied together behind his back, leading to a temporary paralysis of the arms),96 rape of a person in custody,97 the practice of “falaka” (beating of the soles),98 extensive beating to the head and other parts of the body of a person whose hands have been tied behind his back, which resulted in his disability,99 extraction of nails,100 application of electric shocks,101 repeated beatings by prison guards over a period of several days,102 cumulative conditions of detention,103 forceful medical interventions,104 and combination of physical pain and psychological anxiety owing to the uncertainty about a person’s fate.105 92 93 94

95 96 97 98 99 100 101 102 103 104 105

C. Grabenwarter, European Convention on Human Rights: Commentary (München, Verlag C.H. Beck ohg 2014), p. 32. ECtHR (Judgment) Labita v. Italy [gc], no. 26772/95, 6 April 2000, para. 120. ECtHR (Judgment) Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, para. 167; ECtHR (Judgment) Akkoç v. Turkey, nos. 22947/93 and 22948/93, 10 October 2000, para. 115. See further Article 1 cat. See further: C. Grabenwarter, supra n. 4.92, p. 33. ECtHR (Judgment) Aksoy v. Turkey, no. 21987/93, 18 December 1996, para. 64. ECtHR (Judgment) Zontul v. Greece, no. 12294/07, 17 January 2012, paras. 89–93. ECtHR (Judgment) Corsacov v. Moldova, no. 18944/02, 4 April 2006, paras. 59, 64–67. ECtHR (Judgment) Savin v. Ukraine, no. 34725/08, 16 February 2012, paras. 61–63. ECtHR (Judgment) Buntov v. Russia, no. 27026/10, 5 June 2012, paras. 153 and 161. ECtHR (Judgment) Polonskiy v. Russia, no. 30033/05, 19 March 2009, para. 124. ECtHR (Judgment) Al-Adsani v. the United Kingdom [gc], no. 35763/97, 21 November 2001, para. 58. ECtHR (Judgment) Ilaşcu and Others v. Moldova and Russia, no. 48787/99, 8 July 2004, para. 440. ECtHR (Judgment) Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, para. 98. ECtHR (Judgment) Bati and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, paras. 122 and 123; ECtHR (Judgment) Chitayev and Chitayev v. Russia, no. 59334/00, 18 January 2007, paras. 158–159.

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Inhuman treatment is the premeditated causing of serious bodily injury or severe psychological or mental suffering which, unlike torture, does not have to be deliberate in order to trigger the application of Article 3.106 Nevertheless, it must be of a certain level of gravity in order to fall within the protection of that provision. Furthermore, degrading treatment is any ill-treatment aimed at humiliating and debasing the person concerned and which, as far as its consequences are concerned, adversely affects his or her personality by creating debasement and humiliation in his or her own eyes, or in the eyes of others.107 Any treatment which results in such humiliation and debasement of a victim may fall foul of the requirements of Article 3 even if it was not inflicted with that purpose.108 In the case-law of the ECtHR, an adverse treatment of a victim inflicted by the action or omission of the state authorities may be considered as inhuman and/or degrading treatment, even if it does not reach the minimum level of severity or involves the specific intention necessary for it to be designated as torture. This, in particular, relates to instances such as: unjustified force causing injuries during a police arrest,109 unjustified handcuffing during the arrest,110 forced gynaecological examination of a suspect after her arrest,111 blows causing bruises and other lighter injuries inflicted during police questioning,112 real and immediate threats of torture during police questioning,113 police questioning of a witness for several hours without food or water,114 medical interventions in obtaining evidence,115 general conditions of detention,116 disregard of the necessity of medical treatment in detention,117 unjustified use of force against a person in detention,118 unjustified intrusive personal search in 106 ECtHR (Judgment) Ireland v. the United Kingdom, no. 5310/71, 18 January 1978, para. 167; ECtHR (Judgment) Egmez v. Cyprus, no. 30873/96, 21 December 2000, paras. 78–79. 107 ECtHR (Judgment) Raninen v. Finland, no. 20972/92, 16 December 1997, para. 55. 108 ECtHR (Judgment) Peers v. Greece, no. 28524/95, 19 April 2001, para. 74. 109 ECtHR (Judgment) Rehbock v. Slovenia, no. 29462/95, 28 November 2000, para. 77. 110 ECtHR (Judgment) Erdoğan Yağiz v. Turkey, no. 27473/02, 6 March 2007, para. 47. 111 ECtHR (Judgment) Yazgül Yilmaz v. Turkey, no. 36369/06, 1 February 2011, para. 53. 112 ECtHR (Judgment) Tomasi v. France, no. 12850/87, 27 August 1992, para. 115; ECtHR (Judgment) Ribitsch v. Austria, no. 18896/91, 4 December 1995, paras. 34 and 39. 113 ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 108. 114 ECtHR (Judgment) Soare and Others v. Romania, no. 24329/02, 22 February 2011, paras. 221–222. 115 ECtHR (Judgment) Jalloh v. Germany [gc], no. 54810/00, 11 July 2006, para. 82. 116 ECtHR (Judgment) Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, para. 166. 117 ECtHR (Judgment) Mcglinchey and Others v. the United Kingdom, no. 50390/99, 29 April 2003, paras. 57–58. 118 ECtHR (Judgment) Gladović v. Croatia, no. 28847/08, 10 May 2011, para. 56.

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detention,119 immigration detention of a five-year-old girl,120 anguish and uncertainty related to the disappearance of a close relative,121 moral suffering of a person who witnessed the killing of a close relative,122 destruction of homes and property in wide-scale actions of the security forces,123 corporal punishment,124 involuntary psychiatric treatment,125 and unreasonable forced physical exercise in the army.126 In addition, Article 3, under the head of inhuman and/or degrading treatment, comes into play in cases of violence by private parties, including, in particular: repeated serious beating,127 serious neglect and abuse of children for a number of years,128 sexual abuse,129 rape,130 severe physical abuse,131 domestic violence,132 prison violence,133 serious physical attacks in general,134 and discriminatory violence.135 In the assessment of the facts of a case concerning the allegations of illtreatment falling under Article 3, the ECtHR adopts the standard of proof “beyond reasonable doubt” which may follow from direct evidence or from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.136 119 ECtHR (Judgment) Iwanczuk v. Poland, no. 25196/94, 15 November 2001, para. 59. 120 ECtHR (Judgment) Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, 12 October 2006, para. 58. 121 ECtHR (Judgment) Lyanova and Aliyeva v. Russia, nos. 12713/02 and 28440/03, 2 October 2008, para. 118. 122 ECtHR (Judgment) Esmukhambetov and Others v. Russia, no. 23445/03, 29 March 2011, para. 190. 123 ECtHR (Judgment) Bilgin v. Turkey, no. 23819/94, 16 November 2000, para. 103. 124 ECtHR (Judgment) Tyrer v. the United Kingdom, no. 5856/72, 25 April 1978, para. 35. 125 ECtHR (Judgment) Bureš v. the Czech Republic, no. 37679/08, 18 October 2012, para. 106. 126 ECtHR (Judgment) Chember v. Russia, no. 7188/03, 3 July 2008, paras. 56–57. 127 ECtHR (Judgment) A. v. the United Kingdom, no. 25599/94, 23 September 1998, para. 21. 128 ECtHR (Judgment) Z and Others v. the United Kingdom [gc], no. 29392/95, 10 May 2001, para. 74. 129 ECtHR (Judgment) E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002, para. 89; ECtHR (Judgment) C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012, para. 73. 130 ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, para. 83. 131 ECtHR (Judgemnt) Nikolay Dimitrov v. Bulgaria, no. 72663/01, 27 September 2007, paras. 70–71. 132 ECtHR (Judgment) T.M. and C.M. v. the Republic of Moldova, no. 26608/11, 28 January 2014, paras. 40–42. 133 ECtHR (Judgment) Premininy v. Russia, no. 44973/04, 10 February 2011, para. 81. 134 ECtHR (Judgment) Milanović v. Serbia, no. 44614/07, 14 December 2010, para. 87. 135 ECtHR (Judgment) Abdu v. Bulgaria, no. 26827/08, 11 March 2014, para. 24. 136 ECtHR (Judgment) Labita v. Italy [gc], no. 26772/95, 6 April 2000, para. 121. .

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In any case, for the procedural obligation to arise under Article 3 it is sufficient to establish the applicability of that provision in the circumstances of a case, irrespective of the exact classification of the treatment into the category of torture, inhuman or degrading treatment or punishment.137 As the ECtHR has emphasised, although the positive obligations may be differently construed in cases of private violence and violence by state authorities, the underlying rationale and the particular requirements of the procedural obligation are nevertheless similar.138 Accordingly, the question of applicability of the procedural obligation may be observed within that general classification of cases involving ill-treatment by state authorities and private violence. 2.2.1 Ill-Treatment by State Authorities The first case in which the procedural obligation developed under Article  3 related to unjustified violence during a police arrest. In particular, the ECtHR explained that whenever an individual raised an arguable claim139 of ill-treatment by the police or other agents of the state, Article 3, read together with the general obligation under Article 1 to secure an effective enjoyment of rights under that Convention, implies a procedural obligation of effective investigation, identification and punishment of those responsible. This is necessary since “[i]f this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance …, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity.”140 It thus serves to ensure not only the protection of individual human rights but also to promote the general interest of control over the possible arbitrary and excessive use of force by state agents. These principles concerning the procedural obligation under Article 3 are equally applicable in cases of specific security operations involving persons resisting arrest,141 disobedient prison inmates142 or individuals in police 137 ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, para. 148; ECtHR (Judgment) Gladović v. Croatia, no. 28847/08, 10 May 2011, para. 38. 138 ECtHR (Judgment) Denis Vasilyev v. Russia, no. 32704/04, 17 December 2009, para. 100. 139 Note that in the Labita case, the ECtHR referred to “credible assertion” (see Labita v. Italy [gc], no. 26772/95, 6 April 2000, para. 131). However, any distinction appears to be only of a terminological nature. 140 ECtHR (Judgment) Assenov and Others v. Bulgaria [gc], no. 24760/94, 28 October 1998, para. 102. 141 ECtHR (Judgment) Matko v. Slovenia, no. 43393/98, 2 November 2006, paras. 84–88. 142 ECtHR (Judgment) Kurnaz and Others v. Turkey, no. 36672/97, 24 July 2007, paras. 60–61.

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custody,143 unauthorised demonstrators,144 as well as any spontaneous use of force.145 In any such case, the relevancy of the procedural obligation also bears significance for the determination of whether or not the force used by the police was justified in the circumstances.146 The same is true for the use of force against a person in detention or otherwise under the control of the police. In such cases the ECtHR has held that the burden of proof rests on the authorities to provide a satisfactory and convincing explanation as to the cause of the injuries, which could be sufficiently established through compliance with the requirements of the procedural obligation.147 The procedural obligation also applies with its full stringency in cases of illtreatment inflicted by other state authorities, such as in the context of military service148 or involuntary medical interventions.149 2.2.2 Private Violence The cases of private violence cannot engage states’ direct responsibility under the echr unless the violence occurred with the involvement, acquiescence or connivance of the state authorities.150 However, as already observed elsewhere, the general concept of positive obligations in human rights protection allows for the construction of the procedural obligation even in instances of violence by private parties. This method of deduction of the procedural obligation from the general scope of positive obligations was concisely explained in the Beganović case, concerning a violent attack against the applicant by several private individuals. In particular, the ECtHR stressed that when the level of severity of a ­violent attack inflicted by private individuals reached the level of severity sufficient to attract the applicability of Article 3, it required the implementation of ­adequate mechanisms of criminal law protection. This protection streams from the general obligation enshrined under Article 1 echr which, read in conjunction with Article 3, requires “States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or 143 144 145 146 147 148 149 150

ECtHR (Judgment) Bouyid v. Belgium [gc], no. 23380/09, 28 September 2015, para. 124. ECtHR (Judgment) Saya and Others v. Turkey, no. 4327/02, 7 October 2008, paras. 26–29. ECtHR (Judgment) Zelilof v. Greece, no. 17060/03, 24 May 2007, paras. 48 and 54. ECtHR (Judgment) Corsacov v. Moldova, no. 18944/02, 4 April 2006, para. 69. ECtHR (Judgment) Selmouni v. France [gc], no. 25803/94, 28 July 1999, para. 87. ECtHR (Judgment) Chember v. Russia, no. 7188/03, 3 July 2008, para. 61. ECtHR (Judgment) Bureš v. the Czech Republic, no. 37679/08, 18 October 2012, para. 122. ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, paras. 112 and 121.

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inhuman or degrading treatment or punishment, including such ill-treatment­ administered by private individuals.” Securing such protection through the mechanisms of criminal law means: (1) putting in place effective criminal -law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (adequate framework); and (2) effective implementation of such criminal-law mechanisms through an effective investigation and, if appropriate, prosecution and punishment of those responsible.151 In Beganović, without elaborating any further, the ECtHR held that the scope of the state’s positive obligations might differ between cases where illtreatment under Article 3 has been inflicted through the involvement of state agents and cases where violence has been inflicted by private individuals. At the same time, in the assessment of the particular aspects of the procedural obligation, the ECtHR referred to several cases of violence by state authorities.152 In Denis Vasilyev v. Russia, the ECtHR explained this difference to an extent by noting that the requirements of an official investigation, which must lead to an effective prosecution and punishment of those responsible, are nevertheless similar in cases concerning violence by private parties and those involving state authorities.153 It therefore follows that while the scope of the general positive obligations might differ, the procedural requirements are the same. However, another inherent distinction, of a more conceptual nature, between cases involving violence by state agents and violence by private parties can be inferred from this statement. In particular, it has been observed above that an adequate procedural response in respect of violence by state agents serves an important general interest of protection from arbitrary and excessive use of force by state authorities. This is obviously not pertinent to

151 ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, paras. 69–78. 152 Ibid., paras. 69, and 75–78. 153 ECtHR (Judgment) Denis Vasilyev v. Russia, no. 32704/04, 17 December 2009, para. 100. See further: ECtHR (Judgment) Premininy v. Russia, no. 44973/04, 10 February 2011, para. 74; ECtHR (Judgment) C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012, para. 70; ECtHR (Judgment) Koky and Others v. Slovakia, no. 13624/03, 12 June 2012, para. 215; ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, para. 85; ECtHR (Judgment) Tyagunova v. Russia, no. 19433/07, 31 July 2012, para. 65; ECtHR (Judgment) Mityaginy v. Russia, no. 20325/06, 4 December 2012, para. 55; ECtHR (Judgment) Amadayev v. Russia, no. 18114/06, 3 July 2014, para. 70; ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, para. 99.

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cases of private violence. Rather, as pointed out in Beganović, the latter impose “the obligation on the State to bring to justice perpetrators of acts contrary to Article 3 … mainly to ensure that acts of ill-treatment do not remain ignored by the relevant authorities and to provide effective protection against acts of ill-treatment”.154 2.2.3 Negligence Cases of negligence involving the applicability of Article 3 essentially concern various instances of medical negligence. In principle, drawing from the requirements under Article 2 in cases of medical negligence, the ECtHR has held that the procedural obligation is primarily a requirement for an adequate regulatory framework including an effective judicial system. In particular, such a requirement encompasses the judicial system as a whole including not only criminal-law remedies but also remedies in the civil courts, which either alone or in conjunction with a remedy in the criminal courts must enable any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained.155 However, cases involving medical negligence in general should be distinguished from instances of gross medical negligence, which, for example, occurred in the case of Denis Vasilyev v. Russia where the relevant state services manifestly responded inadequately to the applicant’s severe head injury after a violent attack against him. In such a case, the ECtHR held that the procedural obligation must relate to an official effective investigation capable of leading to the identification and punishment of those responsible.156 Similarly, in the context of medical negligence in prisons, the procedural obligation can primarily be satisfied by recourse to an official effective criminal investigation and prosecution of those responsible. In particular, in the Miktus case, the ECtHR held that in the context in which the applicant was in prison, a method of obtaining any evidence concerning the allegations of 154 ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, paras. 79. See also: ECtHR (Judgment) Valiulienė v. Lithuania, no. 33234/07, 26 March 2013, para. 77. 155 ECtHR (Judgment) V.C. v. Slovakia, no. 18968/07, 8 November 2011, para. 125.; ECtHR (Judgment) N.B. v. Slovakia, no. 29518/10, 12 June 2012, para. 84; ECtHR (Judgment) I.G. and Others v. Slovakia, no. 15966/04, 13 November 2012, para. 129; ECtHR (Judgment) Ciorap v. the Republic of Moldova (no. 4), no. 14092/06, 8 July 2014, para. 55. 156 ECtHR (Judgment) Denis Vasilyev v. Russia, no. 32704/04, 17 December 2009, paras. 100 and 153.

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medical negligence by the application of civil remedies would in practice be cumbersome.­Moreover, in such circumstances civil proceedings would be unsuitable to elucidate the circumstances of the case and therefore recourse to criminal remedies was necessary.157 On the other hand, in Dvořáček v. the Czech Republic, concerning allegations of medical negligence in the context of psychiatric internment, the ECtHR, notably making no reference to Mitkus, considered that the principles related to an effective judicial system applied.158 This could be to an extent explained by the fact that institutions for psychiatric internment are not necessarily closed and inaccessible entities as prisons and thus the obtaining of evidence and elucidation of the circumstances of a case should not necessarily be equally cumbersome. It would therefore be easier to argue a case of medical negligence related to psychiatric internment before the civil courts than it would be the case with the allegations of medical negligence in the prison context. Effectiveness of the Procedural Obligation under Articles 2 and 3 echr It transpires from the ECtHR case-law that, in principle, given the nature and structure of the rights under Articles 2 and 3, there is no particular ground on which a distinction should be made in the assessment of the basic requirements of effectiveness of the procedural obligation under these two provisions.159 Differences do exist160 but they are not of a conceptual nature requiring a separate analysis or a different approach to the assessment of the essential features of the requirement of effectiveness. The approach to the analysis of the ECtHR case-law concerning the requirement of effectiveness of the procedural obligation under Articles 2 and 3 could be structured on different grounds. For instance, in his analysis of the failings

2.3

157 ECtHR (Judgment) Mitkus v. Latvia, no. 7259/03, 2 October 2012, paras. 76–77. See further, in the context of Article 2 echr, echr (Judgment) Gülay Çetin v. Turkey, no. 44084/10, 5 March 2013, paras. 85–87; echr (Judgment) Salakhov and Islyamova v. Ukraine, no. 28005/08, 14 March 2013, para. 187. 158 ECtHR (Judgment) Dvořáček v. the Czech Republic, no. 12927/13, 6 November 2014, paras. 110–114. 159 ECtHR (Judgment) Mocanu and Others v. Romania [gc], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014, para. 314; ECtHR (Judgment) Kosumova v. Russia, no. 2527/09, 16 October 2014, paras. 87–90. 160 ECtHR (Decision) Banks and Others v. the United Kingdom, no. 21387/05, 6 February 2007.

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in the criminal investigation process, which could give rise to a violation of Article 2, Philip Leach focuses on specific inadequacies related to:161 (1) the incident scene;162 (2) post-mortem and autopsy;163 (3) treatment of witnesses;164 161 See further: Leach, supra n. 4.37, pp. 202–206. 162 The deficiencies relate to: failure to visit the crime scene (ECtHR (Judgment) İpek v. Turkey, no. 25760/94, 17 February 2004, para. 176); failure to collect evidence from the crime scene or those implicated in the events (ECtHR (Judgment) Udayeva and Yusupova v. Russia, no. 36542/05, 21 December 2010, para. 65); (ECtHR (Judgment) Makaratzis v. Greece [gc], no. 50385/99, 20 December 2004, para. 76); failure to take photographs at the scene (ECtHR (Judgment) Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002, para. 88); failures with regard to sketch map (ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 108); failures in the measurements (ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 115); no reconstruction of the events (ECtHR (Judgment) Perk and Others v. Turkey, no. 50739/99, 28 March 2006, para. 80); failure to properly record the finding of evidence (ECtHR (Judgment) Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002, para. 88; ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 89); no determination of bullet’s trajectory (ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, paras. 326–327); various omissions in the ballistics examination (ECtHR (Judgment) Zengin v. Turkey, no. 46928/99, 28 October 2004, para. 51; ECtHR (Judgment) Fatma Kaçar v. Turkey, no. 35838/97, 15 July 2005, para. 77); failure to find spent bullets (ECtHR (Judgment) Makaratzis v. Greece [gc], no. 50385/99, 20 December 2004, para. 76); failures in the forensic examination of the victim (ECtHR (Judgment) Estamirov and Others v. Russia, no. 60272/00, 12 October 2006, para. 91); no forensic assessment of the relevant traces such as gunshot residue (ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 89; ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, paras. 326–328); failure to test fingerprints (ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 107); failure to obtain the relevant reports (ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 326); failure to follow a lead (ECtHR (Judgment) Luluyev and Others v. Russia, no. 69480/01, 9 November 2006, para. 99). 163 The deficiencies relate to: failures in recording of the relevant data in autopsy (ECtHR (Judgment) Kakoulli v. Turkey, no. 38595/97, 22 November 2005, para. 126); defective postmortem with regard to the examination of the signs of ill-treatment and the cause of death (ECtHR (Judgment) Tanlı v. Turkey, no. 26129/95, 10 April 2001, para. 150); insufficient expertise of those conducting the autopsy inadequately (ECtHR (Judgment) Demiray v. Turkey, no. 27308/95, 21 November 2000, para. 51). 164 The deficiencies relate to: insufficient evidence obtained from witnesses (ECtHR (Judgment) Tekdağ v. Turkey, no. 27699/95, 15 January 2004, para. 80); one-sided assessment of witness evidence (ECtHR (Judgment) Fatma Kaçar v. Turkey, no. 35838/97, 15 July 2005, para. 77); inadequate questioning of the state officials (ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 142); failures in resolving conflicting testimonies (ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 236);

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(4) general investigation;165 (5) inquest and inquiry procedures;166 (6) prosecuting authorities;167 and (7) various other aspects.168



inadequate taking of statements including delays in that respect (ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, paras. 340); failures in taking of the identification measures (ECtHR (Judgment) Şemsi Önen v. Turkey, no. 22876/93, 14 May 2002, para. 88); questioning carried out by a body implicated in the events (ECtHR (Judgment) Aktaş v. Turkey, no. 24351/94, 24 April 2003, para. 305). 165 The deficiencies relate to: delay in reporting a death in custody (ECtHR (Judgment) Çiçek v. Turkey, no. 25704/94, 27 February 2001, para. 149); delay in instituting an official investigation (ECtHR (Judgment) Luluyev and Others v. Russia, no. 69480/01, 9 November 2006, para. 96); assumptions exculpating the security forces (ECtHR (Judgment) İpek v. Turkey, no. 25760/94, 17 February 2004, para. 172); no effective investigation into the allegations of collusion by the security forces (ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, paras. 102–120); lack of independence of the investigating authorities (ECtHR (Judgment) Aktaş v. Turkey, no. 24351/94, 24 April 2003, para. 304; ECtHR (Judgment) Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, para. 210; ECtHR (Judgment) Şandru and Others v. Romania, no. 22465/03, 8 December 2009, para. 74); failures in the co-ordination of the investigation (ECtHR (Judgment) Buldan v. Turkey, no. 28298/95, 20 April 2004, paras. 86–87); lack of reasonable expedition of the proceedings (ECtHR (Judgment) Agache and Others v. Romania, no. 2712/02, 20 October 2009, paras. 76–84); lack of thoroughness and short and cursory investigations (ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 144); limited scope and short duration of the investigation (ECtHR (Judgment) Akkoç v. Turkey, nos. 22947/93 and 22948/93, 10 October 2000, para. 98); failures with regard to the assessment of the relevant documentation, in particular the custody records (ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, paras. 339); failure to examine the causal link between death and treatment in custody (ECtHR (Judgment) Ahmet Özkan and Others v. Turkey, no. 21689/93, 6 April 2004, para. 329); failure to take particular actions, such as by obtaining photographs of missing persons or make connections between possibly linked killings (ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, paras. 345; ECtHR (Judgment) Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002, para 145); lack of public scrutiny and involvement of next-ofkin (ECtHR (Judgment) Estamirov and Others v. Russia, no. 60272/00, 12 October 2006, paras. 91–92); lack of accountability of officers for their weapons (ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 90). 166 The deficiencies relate to: delay in the commencement of the procedure (ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, para. 136); non-­attendance of a key witness (ECtHR (Judgment) McShane v. the United Kingdom, no. 43290/98, 28 May 2002, para. 121); failure to provide legal aid to the victim (ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, para. 131); inability of the victim to participate in the proceedings (ECtHR (Judgment) Slimani v. France, no. 57671/00, 27 July 2004, paras. 47–48); non-disclosure of witness statements to the victims (ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, para. 128);

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These specific procedural aspects could be further systematised and generalised so as to allow conceptual conclusions on the legal nature and strength of the obligation to investigate and prosecute in human rights law. In that connection, the ensuing analysis will deal with the principal elements determining the scope of the obligation to investigate and prosecute, primarily in order to determine to what extent those elements can be conceptualised as an operative system of rules, which is expected to facilitate the assessment of the legal nature and strength of the procedural obligation in human rights law. 2.3.1 Appropriate Procedural Avenue As already noted earlier in this study, it could generally be said that whenever the echr requires criminal-law protection of a right, or a particular instance of a right, the criminal procedure capable of implementing the substantive protection at issue emerges as the appropriate procedural avenue. There are, nevertheless, several particularities within this general rule. These particularities principally relate to the questions of: (1) the relationship between criminal

impeding the inquest by invoking public interest immunity (ECtHR (Judgment) Mckerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 151); inability of the inquest to provide any final verdict in effectively securing a prosecution (ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, para. 113); narrow scope of the inquest (ECtHR (Judgment) Finucane v. the United Kingdom, no. 29178/95, 1 July 2003, para. 78); lack of public scrutiny (ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, para. 84). 167 The deficiencies relate to: failures in taking statements of those involved in the events (ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 90); failure to inspect the custody records (ECtHR (Judgment) Çiçek v. Turkey, no. 25704/94, 27 February 2001, para. 149); non critical acceptance of the official police versions without relevant verification (ECtHR (Judgment) Abdurrahman Orak v. Turkey, no. 31889/96, 14 February 2002, para. 85); various measures attempting to shield the police (ECtHR (Judgment) Nachova and Others v. Bulgaria[gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 116; ECtHR (Judgment) Dink v. Turkey, nos 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010, paras. 82–88); adoption of the hasty conclusions (ECtHR (Judgment) Demiray v. Turkey, no. 27308/95, 21 November 2000, para. 51); failure to provide reasons for the non-prosecution decision (ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, paras. 108); delays in criminal proceedings (ECtHR (Judgment) Mojsiejew v. Poland, no. 11818/02, 24 March 2009, para. 63). 168 Relating to: inadequate reasoning in the case of an acquittal of the accused (ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 94); light sentences given to those responsible (ECtHR (Judgment) Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, 26 July 2005, para. 120); non-enforcement of a criminal conviction (ECtHR (Judgement) Agache and Others v. Romania, no. 2712/02, 20 October 2009, para. 83).

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and civil (including administrative) remedies; (2) an appropriate investigation as opposed to various types of inquests and inquiries; (3) the scope of the procedural obligation; (4) ex officio and private prosecutions; (5) specialised jurisdiction, such as military; and (6) transnational elements in prosecutions. 2.3.1.1 Criminal vs. Civil Remedies The above analysis of the applicability of the procedural obligation has shown that the substantive protection of a right does not bear the same stringency when the life-threatening circumstances or physical or psychological injuries are caused by some form of non-deliberate, principally negligent, action. In such instances the procedural obligation is a requirement for an adequate regulatory framework, including an effective judicial system capable of securing an award of damages and/or an acknowledgment of responsibility, rather than an obligation to implement the criminal-law protection by investigation and prosecution of those responsible. Accordingly, in these instances the civil remedies may, either alone or in conjunction with criminal remedies, satisfy the relevant procedural requirements. Disciplinary remedies may also be envisaged to that effect.169 There are several practical difficulties involved in the application of this approach. The first arises in establishing the requisite level of intention sufficient to trigger protection through criminal-law remedies or, more precisely, to require a procedural response through the application of criminal-law mechanisms. This can be observed, for example, in cases involving road accidents where in its first case on the matter, Al-Fayed v. France,170 the ECtHR made no mention of the possibility of satisfying the procedural requirement by the application of civil remedies. A similar approach was followed in Railean v. Moldova171 where the ECtHR also assessed the effectiveness of the criminal investigation making no statement as to the effectiveness of the civil remedies. Similarly, in several subsequent cases on the matter, the ECtHR confined itself to examining only the effectiveness of the criminal prosecution concerning deaths caused by road accidents.172 169 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, para. 194; ECtHR (Judgment) Anna Todorova v. Bulgaria, no. 23302/03, 24 May 2011, para. 73. 170 ECtHR (Decision) Al-Fayed v. France, no. 38501/02, 27 September 2007, paras. 73–75. 171 ECtHR (Judgment) Voiculescu v. Romania, no. 5325/03, 3 February 2009, para. 30; ECtHR (Judgment) Railean v. Moldova, no. 23401/04, 5 January 2010, paras. 27–30. See further, Dâmbean v. Romania, no. 42009/04, 23 July 2013, para. 41. 172 ECtHR (Judgment) Igor Shevchenko v. Ukraine, no. 22737/04, 12 January 2012, para. 56; ECtHR (Judgment) Sergiyenko v. Ukraine, no. 47690/07, 19 April 2012, para. 48.

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Conversely, in the case of Rajkowska v. Poland, drawing from the case-law concerning medical negligence, the ECtHR introduced the possibility of civil remedies satisfying the procedural obligation in cases concerning road accidents. However, it provided no substantive guidance as to why the procedural requirement in that case differed from the one of Al-Fayed v. France adopted only a few months earlier. Moreover, in the application of the general principles introducing a concurrent civil and criminal procedural response, the ECtHR found “no indication that there has been any failure on the part of the State to provide a procedure whereby the criminal and civil responsibility of persons who might be held answerable for the applicant’s husband’s death could be established” and then analysed in detail the manner in which the criminal-law mechanisms had been applied.173 An attempt at explaining the difference between the two approaches was made in Anna Todorova v. Bulgaria where the ECtHR differentiated that case from Al-Fayed and Railean by noting that, unlike in the two cited cases, the death was caused neither under suspicious circumstances nor intentionally, and therefore there was no call for criminal-law remedies.174 In fact, the applicant’s relative in Anna Todorova died while being in a car which was overtaking another vehicle, which gave rise to a full-fledged homicide investigation at the domestic level, and the death in Railean was a classic hit-and-run accident. It is true that the applicant in Railean made certain far-fetched complaints to the effect that the car had been hijacked and that it was necessary to verify whether any organs of the deceased had been removed, but neither the domestic authorities nor the ECtHR picked up on those submissions by treating the case as a suspicious death.175 Similarly, Al-Fayed could have been treated as a suspicious death only if popular knowledge of the events had been conclusive.176 However, the ECtHR found nothing on which the investigating authorities could be criticised for not treating the case as involving intentional rather than unintentional homicide.177 Eventually, the approach taken in Anna Todorova was clarified by noting that civil remedies may be relevant when death “has been caused by pure negligence without aggravating circumstances.”178

173 174 175 176

ECtHR (Decision) Rajkowska v. Poland, no. 37393/02, 27 November 2007 (emphasis added). ECtHR (Judgment) Anna Todorova v. Bulgaria, no. 23302/03, 24 May 2011, paras. 73–74. ECtHR (Judgment) Railean v. Moldova, no. 23401/04, 5 January 2010, paras. 31–34. The case concerns the death of Emad Fayed and Lady Diana Spencer in a car accident in 1997. 177 ECtHR (Decision) Al-Fayed v. France, no. 38501/02, 27 September 2007, para. 82. 178 ECtHR (Judgment) Cioban v. Romania, no. 18295/08, 11 March 2014, para. 25.

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A further clarification in this context was made in the case of Bakanova v. Lithuania, where the ECtHR explained that different considerations apply in cases in which the death “has not been caused by use of force or similar direct official action.” In such instances, the issue of an effective obligation arises but the standard of effectiveness may be less exacting.179 Similar issues could be observed with regard to deaths related to dangerous activities and hazards. In Öneryildiz, the ECtHR referred to its case-law requiring effective judicial system, which does not necessarily entail criminal law remedies, but only to make a distinction to the case at issue in which it considered it more appropriate to apply the principles relevant to the use of lethal force. This distinction was explained by noting that an effective investigation and prosecution will be necessary where negligence attributable to state officials or bodies goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, fail to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity.180 The same approach was followed in Budayeva and Others v. Russia181 and Kolyadenko and Others v. Russia.182 Conversely, without making any assessment of the qualification of negligence by the domestic authorities, in Murillo Saldias and Others v. Spain, the ECtHR declared inadmissible a complaint related to life-threatening situation allegedly caused by the authorities’ failure to supervise an activity, on the grounds that relevant remedies in administrative proceedings had not been exhausted.183 Nevertheless, more recently, such an assessment, based on the Öneryildiz principle, has been made in a case concerning deaths caused by the explosion of a projectile near a military shootingpractice zone. In that case the ECtHR found that the negligence of the state was of such a degree that it could not be properly addressed only through the civil remedies.184

179 ECtHR (Judgment) Bakanova v. Lithuania, no. 11167/12, 31 May 2016, para. 67. 180 ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, paras. 92–93. 181 ECtHR (Judgment) Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008, paras. 142–145. 182 ECtHR (Judgment) Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, 28 February 2012, paras. 188–193. 183 ECtHR (Decision) Murillo Saldias and Others v. Spain, no. 76973/01, 28 November 2006. 184 ECtHR (Judgment) Oruk v. Turkey, no. 33647/04, 4 February 2014, para. 66. See further: ECtHR (Judgment) Elinç v. Turkey, no. 50388/06, 18 November 2014, para. 102.

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The question of the requisite intention triggering the application of c­riminal-law remedies has also arisen in cases concerning medical negligence.185 In particular, although the allegations of medical negligence will in principle engage the requirement of establishing an adequate regulatory framework including an effective judicial system, instances of gross medical negligence will give rise to an official effective investigation and prosecution.186 Another difficulty related to the assessment of an appropriate procedural approach in cases involving negligence lies in the ambiguous and perhaps inoperative application of that requirement in the domestic practice. It is a common and almost expected occurrence that life-threatening situations or serious physical and psychological injuries falling under Articles 2 and 3 will be subject, at least initially, to criminal jurisdiction in the relevant domestic law, irrespective of whether they have been committed deliberately or by negligence. Accordingly, by strictly adhering to the position that the procedural obligation might be satisfied by securing civil and administrative remedies alone, and ignoring the criminal jurisdiction, could create a gap between the national enforcement of legal protection and the related human rights expectations. This could make human rights protection illusory as any success in the related civil or administrative proceedings might depend on the findings of the criminal investigation. In other words, when the national system considers that the criminal mechanisms are the most appropriate procedural response to infringements of a particular protected interest, which implies, inter alia, an official effective investigation and prosecution of those responsible, then lowering this level of protection to some other avenues obliges an individual to pursue remedies which the national law itself did not envisage as the most appropriate procedural response. Accordingly, parallel civil or administrative protection cannot be relevant a priori but only in so far as it is effective “in practice within a time-span such that the courts can complete their examination of the merits of each individual case.”187 On the other hand, effective criminal investigation and prosecution could in themselves satisfy the procedural obligation when such protection is envisaged at the domestic level.188 On several occasions the ECtHR has had an opportunity to clarify this procedural regularity. In the context of exhaustion of domestic remedies as an admissibility requirement before a complaint can be brought at the international­ 185 Note that a case on the matter of medical negligence is pending before the Grand Chamber (Lopes de Sousa Fernandes v. Portugal, no. 56080/13). 186 See further: supra 4.2.1.8. 187 ECtHR (Judgment) Calvelli and Ciglio v. Italy [gc], no. 32967/96, 17 January 2002, para. 53. 188 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, para. 202.

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level, the ECtHR examined whether an individual, after having duly used criminal law remedies, could have obtained a more effective examination of the case by pursuing civil or administrative remedies and whether the latter would have objectives that are any different from the ones pursued by the criminal law remedy. Having found no credible assertions to that effect, and in the absence of any doubt as to the effectiveness of criminal law remedies, the ECtHR considered that it was not necessary to pursue civil and administrative remedies in addition to those provided in criminal law.189 Similar conclusions were reached in the assessment of the merits of a complaint where a detainee complained about the lack of an effective investigation into his allegations of medical malpractice. While observing that in the national system criminal-law remedies prevailed over civil ones in terms of the possibility of gathering evidence, the ECtHR held that it would be illusory to give precedence to civil remedies in the case of a detained individual who wanted to have the circumstances of his case elucidated.190 To that effect, the ECtHR has on two principal grounds confined itself to examining only the application of criminal-law mechanisms in several cases concerning road accidents. Firstly, because it was not demonstrated that any other avenue would have been more effective; and secondly, because the relevant procedural legislation afforded the possibility of a joint examination of criminal responsibility and civil liability arising from the same culpable actions.191 Lastly, in this context, in the Basyuk v. Ukraine case, the ECtHR stressed that when “neither the pertinent facts surrounding the death nor the liability of the parties involved has been established, there appears to be no basis for taking a clear stand which forum, civil or criminal, would have been appropriate in the circumstances.”192 There would therefore be no reason to give precedence to the civil or administrative remedies when the relevant circumstances should be established through a criminal investigation and, if appropriate, prosecution.

189 ECtHR (Judgment) Jasinskis v. Latvia, no. 45744/08, 21 December 2010, paras. 50–54; ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, paras. 72–82; ECtHR (Judgment) Banel v. Lithuania, no. 14326/11, 18 June 2013, paras. 48–50. 190 ECtHR (Judgment) Mitkus v. Latvia, no. 7259/03, 2 October 2012, paras. 76–77. 191 ECtHR (Judgment) Antonov v. Ukraine, no. 28096/04, 3 November 2011, paras. 47–48; ECtHR (Judgment) Igor Shevchenko v. Ukraine, no. 22737/04, 12 January 2012, paras. 56–62; ECtHR (Judgment) Prynda v. Ukraine, no. 10904/05, 31 July 2012, para. 54; ECtHR (Judgment) Zubkova v. Ukraine, no. 36660/08, 17 October 2013, para. 38. 192 ECtHR (Judgment) Basyuk v. Ukraine, no. 51151/10, 5 November 2015, para. 62.

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These conceptual inconsistencies, principally created by insufficient recognition of the gap between the applicable domestic enforcement of legal ­protection and the echr requirements, have to an extent been clarified in the recent case of Mustafa Tunç and Fecire Tunç v. Turkey where the ­ECtHR held that the question whether an official investigation was necessary or whether the procedural response could be confined to civil and administrative remedies depended on the initial facts of the case. Accordingly, where the hypothesis of unlawful killing is arguable on the facts, an effective official ­investigation is mandated irrespective of the fact that it could later be established that the death was a result of negligence.193 Thereby the actions of the domestic authorities aimed at investigating the case remain attached to the relevant ­human rights requirements irrespective of the fact that, from the perspective of the outcome of the case, the latter could eventually also be satisfied by providing the victim with another procedural avenue, including the one in civil and administrative courts. The above questions of appropriateness of the civil law remedies in satisfying the procedural obligation under Articles 2 and 3 are confined to the instances of non-deliberate, principally negligent, occurrences of life-­threatening actions and physical or psychological injuries of an individual. This was ­expressed in Jeronovičs v. Latvia as “mere fault, omission or negligence.”194 Concerning other breaches of those provisions, the civil remedies providing for the possibility of obtaining compensation can only be applicable as part of the range of possible remedies.195 However, in themselves they are irrelevant for the procedural ­obligation and cannot, for example, interrupt the running of the six-month time-limit for bringing a complaint before the ECtHR.196 In particular, in cases of wilful actions by state agents threatening the life or well-being of an individual, criminal remedies provide the only relevant avenue for addressing the case.197 The ECtHR explained that should it be otherwise and should the authorities be allowed to confine their reaction to the mere payment of compensation without attempting to prosecute and punish 193 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, paras. 133–134. 194 ECtHR (Judgment) Jeronovičs v. Latvia [gc], no. 44898/10, 5 July 2016, para. 76. 195 ECtHR (Judgment) Keenan v. the United Kingdom, no. 27229/95, 3 April 2001, para. 130; ECtHR (Judgment) Z. and Others v. the United Kingdom [gc], no. 29392/95, 10 May 2001, para. 109. 196 ECtHR (Judgment) Narin v. Turkey, no. 18907/02, 15 December 2009, para. 48; ECtHR (Decision) Orić v. Croatia, no. 50203/12, 13 May 2014, para. 33. 197 ECtHR (Judgment) Jeronovičs v. Latvia [gc], no. 44898/10, 5 July 2016, para. 77.

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those responsible, it would be possible for the agents of the state to abuse the rights of those within their control with virtual impunity, making the general legal prohibitions of killing and torture and inhuman and degrading treatment, despite their fundamental importance, ineffective in practice.198 Moreover, the ineffectiveness of civil remedies follows from the fact that they are available upon the initiative of the victim rather than the authorities, and that they do not aim at the identification and punishment of any perpetrator as required by the procedural obligation under the echr.199 In any case, the ineffectiveness of criminal action is capable of undermining the effectiveness of any other action, such as a civil or administrative one, thus making recourse to those remedies theoretical and illusory.200 The same principles are relevant in respect of omissions (other than those associated with pure negligence) of the state authorities leading up to the death or severe injury of an individual. An example of such omissions is death or ill-treatment in custody where it follows already from the logic of the requirement for an official effective investigation that civil proceedings which would be left to the initiative of the victim would not provide an effective avenue.201 This is all the more so given that the institution of such civil 198 ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, para. 74; ECtHR (Judgment) Kaya v. Turkey, no. 22729/93, 19 February 1998, para. 105; ECtHR (Judgment) Tanrıkulu v. Turkey [gc], no. 23763/94, 8 July 1999, para. 79; ECtHR (Judgment) Velikova v. Bulgaria, no. 41488/98, 18 May 2000, para. 89; ECtHR (Judgment) Salman v. Turkey [gc], no. 21986/93, 27 June 2000, para. 83; ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, para. 57; ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, para. 105; ECtHR (Judgment) Avşar v. Turkey, no. 25657/94, 10 July 20001, para. 377; ECtHR (Judgment) Krastanov v. Bulgaria, no. 50222/99, 30 September 2004, para 60; ECtHR (Judgment) Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007; para. 55. 199 ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, para. 121. 200 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 261. Note, however, that in two cases against the United Kingdom related to the conflict in Northern Ireland, adopted on the same day (see McCaughey and Others v. the United Kingdom, no. 43098/09, 16 July 2013, para. 121; Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013, para. 60) the ECtHR firstly, separated the complaint concerning the investigative delay from other procedural aspects, and secondly, declared the substantive and procedural complaint related to matters other than the length inadmissible as premature on the grounds that the applicants’ civil action was still pending. See further: McDonnell v. the United Kingdom, no. 19563/11, 9 December 2014, paras. 76–78. 201 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, paras. 74, 97–101.

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proceedings,­parallel to the mandatory criminal investigation and prosecution, would in practice be obsolete,202 and that the knowledge of the relevant facts would in principle be in the hands of the authorities.203 As with the instances of actions or omissions of state agents resulting in threats to life or serious injuries, wilful conduct of private parties producing the same consequences gives rise to the procedural obligation which cannot be satisfied only through the civil remedies. This naturally follows from the requirement of criminal-law protection from such infringements which, in its enforcement, requires the identification and punishment of those responsible.204 2.3.1.2 Investigation vs. Inquest and Inquiry Procedures It could be generally asserted that the essential purpose of an investigation into the circumstances surrounding the death or serious injury of an individual should be to secure prosecution in respect of any criminal offence which may have been uncovered. Accordingly, any form of investigation or an aggregate of investigative avenues which could eventually produce that result would, on the assumption that they comply with other requirements of applicability and effectiveness, fall within the concept of an effective investigation.205 The first case to address the matter was McCann and Others v. the United Kingdom where the ECtHR declined to give a principal instruction as to the appropriateness of inquest proceedings as an investigative mechanism. It noted, however, that the public inquest proceedings at issue provided a detailed review of the events surrounding the killing of three terrorist suspects as well as an opportunity to examine and cross-examine the witnesses involved in the security operation. These considerations led the ECtHR to conclude that there had been no violation of the procedural limb of Article 2.206

202 ECtHR (Judgment) De Donder and De Clippel v. Belgium, no. 8595/06, 6 December 2011, paras. 60–62. 203 ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para 73. 204 ECtHR (Judgment) Assenov and Others v. Bulgaria, no. 24760/94, 28 October 1998, para. 86; ECtHR (Judgment) Opuz v. Turkey, no. 33401/12, 9 June 2009, paras. 150–152; ECtHR (Judgment) Beganović v. Croatia, no. 46423/08, 25 June 2009, para. 56. 205 ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, paras. 142–144; ECtHR (Judgment) Bubbins v. the United Kingdom, no. 50196/99, 17 March 2005, paras. 153–164; ECtHR (Decision) Rowley v. the United Kingdom, no. 31914/03, 22 February 2005; ECtHR (Judgment) Kleyn and Aleksandrovich v. Russia, no. 40657/04, 3 May 2012, para. 56. 206 ECtHR (Judgment) McCann and Others v. the United Kingdom, 27 September 1995, 27 September 1995, paras. 162–164.

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Conversely, in Hugh Jordan v. the United Kingdom and several other similar Northern-Irish cases,207 the ECtHR found the public inquest proceedings in Northern Ireland208 to fall short of the requirements of the procedural obligation under the echr. Specifically, the ECtHR observed that during the inquest proceedings there was no possibility to summon those implicated in the events to give evidence. Instead, their written depositions were admitted into evidence, which prevented a full assessment of the case, contrary to the echr. On the other hand, the fact that the inquest was limited in scope, in that it had not dealt with the general questions concerning the use of force resulting in death, did not give rise to the particular concerns as, in any case, the inquest was capable of elucidating the circumstances of the killing. The difficulty, nevertheless, related to the fact that the jury could only give a verdict concerning the identity of the deceased and the date, place and cause of death, while the inquest procedures in some other jurisdictions, such as Gibraltar and England and Wales, allowed the jury to reach a number of verdicts, including the one of unlawful death. Moreover, the coroner in Northern Ireland could have sent a written report to the competent prosecutor had he considered that a criminal offence had been committed. At the same time, the prosecutor was not obliged to react to such a report by prosecuting or giving reasons for not prosecuting. Contrary to those practices, in Gibraltar and England and Wales the prosecutor was required to reconsider any decision not to prosecute and to give reasons which were amenable to challenge in the courts. In these circumstances, and contrary to the echr requirements, the inquest procedure in Northern Ireland was devoid of any effective role in the identification or prosecution of any criminal offences which may have occurred. Moreover, the victim’s next-of-kin were not able to participate effectively in the public inquest proceedings as they were not able to obtain copies of any witness statements until the witness concerned gave evidence, and they were not provided legal aid. There were also delays in the examination of the case principally related to the difficulties of the next-of-kin’s participation in the proceedings.209 207 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, paras. 142–155 and 157–160; ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, paras. 119–134 and 136–138; ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, paras. 109–120 and 122–124. 208 Public inquest proceedings at issue were special form of investigation into circumstances surrounding death conducted by coroners, independent judicial officers, normally sitting with a jury. Procedural decisions of the coroner and his or her mistaken directions given to the jury were susceptible to a judicial review. 209 ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, paras. 125–140 and 142–144.

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In another case, the public inquest proceedings in which there was a possibility of examining witnesses but without the possibility of adopting a verdict in such a way as to appear to determine any question of the criminal liability or any civil liability, was held to be inadequate to provide a remedy “for determining the liability of the authorities for any alleged ill-treatment or for providing compensation” within the meaning of Article 13 echr.210 On the other hand, such public inquest proceedings were held to have satisfied the procedural obligation under Article 2 with regard to the complaint about the finding of accidental death whereas the applicant considered that the case concerned an unlawful death,211 or where the applicant argued that the inquiry should have encompassed wider issues of the remand policies.212 The question is therefore not about the outcome of the inquest procedure but rather whether it involved an exhaustive public examination of evidence and whether there existed some omissions which could have, either individually or cumulatively, undermined the requirement of effectiveness of the procedural obligation under the echr.213 Likewise, in Cyprus v. Turkey the ECtHR found that the Turkish G ­ overnment’s cooperation with the un Committee on Missing Persons could not discharge its procedural obligation under Article 2 concerning the enforced disappearances. This was based on the fact that although those procedures were useful for the humanitarian purpose for which they had been established, they were not of themselves sufficient to meet the standard of an effective investigation required by Article 2. That conclusion in particular followed from the narrow scope of the procedures before the un Committee on Missing Persons focused on determining whether or not any of the missing persons were dead or alive; without any possibility to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Moreover, it had limited territorial jurisdiction covering only the island of Cyprus and excluding the Turkish mainland. In addition, the persons who might have been responsible for violations of the echr had been promised impunity.214

210 ECtHR (Judgment) Keenan v. the United Kingdom, no. 27229/95, 3 April 2001, paras. 76–79 and 128. 211 ECtHR (Decision) Douglas-Williams v. the United Kingdom, no. 56413/00, 8 January 2002. 212 ECtHR (Decision) Bailey v. the United Kingdom, no. 39953/07, 19 January 2010. 213 ECtHR (Judgment) Bubbins v. the United Kingdom, no. 50196/99, 17 March 2005, para. 154; ECtHR (Decision) Bennett v. the United Kingdom, no. 5527/08, 7 December 2010, paras. 76–82. 214 ECtHR (Judgment) Cyprus v. Turkey [gc], no. 25781/94, 10 May 2001, paras. 27 and 135.

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In several Turkish cases the ECtHR has also addressed the issue of inquires conducted by administrative bodies into offences involving civil servants, in principle members of the security forces.215 It has held that such inquiries could not satisfy the procedural obligation as they failed to meet the requirement of independence given that the councils were chaired by governors or their deputies and were composed of local representatives of the executive, who were hierarchically dependent on the governor, i.e., on an executive officer linked to those under investigation.216 Similarly, in Dimitrov and Others v. Bulgaria the ECtHR held that an internal police inquiry into the actions leading to the death of an individual could not be said to comply with the procedural obligation since it principally lacked independence. Moreover, the inquiry was purely internal, and its final report had remained classified for a number of years, with the results that the victims were not informed of it and that it was not subjected to any form of scrutiny by persons outside the police chain of command.217 To that effect, any internal disciplinary inquiry would equally not have been able to satisfy the requirement of effectiveness and independence inherent in the procedural obligation.218 The problem of victim participation was the principal reason leading the ECtHR to find the legal framework of pre-investigation inquiry procedure219 215 The body competent to conduct an administrative inquiry in such instances is an administrative council of a district or province which is competent to decide whether to prosecute or not. The decision of the Administrative Council is amenable to a review by the Administrative Court. By the legislative amendments of January 2003 the jurisdiction of the administrative councils was excluded with regard to the most serious offences (see further: ECtHR (Judgment) Çamçi and Others v. Turkey, no. 25172/02, 24 February 2009, paras. 21–22). 216 ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 342; ECtHR (Judgment) İpek v. Turkey, no. 25760/94, 17 February 2004, para. 174; ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, para. 115; ECtHR (Judgment) Nazif Yavus v. Turkey, no. 69912/01, 12 January 2006, para. 49; ECtHR (Judgment) Çamçi and Others v. Turkey, no. 25172/02, 24 February 2009, paras. 44–45; ECtHR (Judgment) Ümit Gül v. Turkey, no. 7880/02, 29 September 2009, para. 53; ECtHR (Judgment) Karahan v. Turkey, no. 11117/07, 25 March 2014, para. 45; ECtHR (Judgment) Meryem Çelik and Others v. Turkey, no. 3598/03, 16 April 2013, para. 77. 217 ECtHR (Judgment) Dimitrov and Others v. Bulgaria, no. 77938/11, 1 July 2014, para. 145. 218 ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para. 82; see further ­ECtHR (Decision) Mcbride v. the United Kingdom, no. 1396/06, 9 May 2006. 219 The “pre-investigation inquiry” procedure in the Russian criminal justice system is a preliminary stage of the proceedings conducted by an inquiry officer, inquiry agency, investigator, or head of an investigation unit upon any report alleging that an offence has been

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in the Russian criminal justice system inadequate.220 For instance, in Buntov v. Russia the ECtHR observed that the aggrieved individual was not granted the procedural status of a victim and could therefore not exercise any of the procedural rights attached to that status, such as the right to lodge submissions, to put questions to the experts or to obtain copies of procedural decisions. Moreover, the investigator dismissed the expert reports commissioned and obtained by the aggrieved individual as material obtained by inappropriate persons and by extra-procedural methods. This suggested that, overall, such pre-investigation inquiry procedure could not meet the requirements of an ­effective investigation under the echr.221 Lastly, it should be noted that the ECtHR was unable to accept that an arguable complaint of ill-treatment by state agents could be examined in the context of the criminal case against the individual alleging ill-treatment. In the case of Zalyan and Others v. Armenia the ECtHR expressed doubts that such an investigation “could be regarded as an inquiry whose purpose was truly and fully to investigate the applicants’ allegations of ill-treatment and to identify and punish those responsible.”222 2.3.1.3 Scope of the Procedural Obligation In Ali and Ayşe Duran v. Turkey the ECtHR stressed: The requirements of Articles 2 and 3 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law and the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a

committed. The procedure has to be completed within three days from the moment when the report was filed. Based on the results of the “pre-investigation inquiry” the investigating authority has the right to open or to refuse opening of the criminal case as well as to forward the case to the competent jurisdiction. If the case is opened, the preliminary investigation must be instituted. The refusal to open a case may be challenged before the higher prosecuting authority or the competent court (see further: ECtHR (Judgment) Lyapin v. Russia, no. 46956/09, 24 July 2014, para. 99). 220 ECtHR (Judgment) Lyapin v. Russia, no. 46956/09, 24 July 2014, para. 133. 221 ECtHR (Judgment) Kleyn and Aleksandrovich v. Russia, no. 40657/04, 3 May 2012, paras. 56–58; ECtHR (Judgment) Buntov v. Russia, no. 27026/10, 5 June 2012, paras. 133–135. See also ECtHR (Judgment) Savriddin Dzhurayev v. Russia, no. 71386/10, 25 April 2013, para. 193; ECtHR (Judgment) Beresnev v. Russia, no. 37975/02, 18 April 2013, para. 98. 222 ECtHR (Judgment) Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, 17 March 2016, para. 274.

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­ articular sentence, the national courts should not under any circump stances be prepared to allow life endangering offences and grave attacks on physical and moral integrity to go unpunished …223 This rule has been based on the ECtHR well-established case-law on the procedural obligation under Articles 2 and 3, which in its end-result must secure, on the one hand, the public’s confidence in and support for the rule of law and, on the other hand, respect for an individual by preventing any appearance of the authorities’ tolerance of or collusion in unlawful acts.224 Accordingly, leaving the assessment of the effectiveness of the procedure before the competent courts out of reach of the procedural obligation would run counter to its fundamental importance in securing an effective enjoyment of the echr rights. Such a scope of the procedural obligation follows also from the logic of the criminal procedure itself making it evident that an effective investigation must result in an action in the competent courts.225 It is essentially nothing more than a legally governed procedure aimed at verifying the initial hypotheses.226 Accordingly, a violation of the state’s procedural obligation is conceivable whenever failures in the investigation, taken individually or cumulatively, could impede the progress of an action in the competent courts. For instance, in Zashevi v. Bulgaria a violation of the state’s procedural obligation under Article 2 was principally based on the failure of the prosecuting authorities to collect evidence linking the accused with the commission of the offence, which eventually resulted in his acquittal. Their omissions in particular related to errors in the seizing of evidence from the crime scene and the taking of relevant evidence and conducting the necessary analyses, misconduct in the taking of witness statements, improper conduct of the identity parades, and a failure to protect the key witness from intimidation.227 Similarly, in Makaratzis v. Greece the accused were acquitted due to the failure of the investigating authorities to identify all those involved in the event and to collect all relevant evidence. That was sufficient for the ECtHR to find a violation of the state’s procedural obligation under Article 2.228 The same conclusion was reached in Mojsiejew v. Poland where the failure to examine the victim’s 223 ECtHR (Judgment) Ali and Ayşe Duran v. Turkey, no. 42942/02, 8 April 2008, para. 61. 224 ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, paras. 96–97; ECtHR (Judgment) Okkalı v. Turkey, no. 52067/99, 17 October, 2006, para. 65. 225 ECtHR (Judgment) Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004, para. 57. 226 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 133. 227 ECtHR (Judgment) Zashevi v. Bulgaria, no. 19406/05, 2 December 2010, para. 58. 228 ECtHR (Judgment) Makaratzis v. Greece [gc], no. 50385/99, 20 December 2004, paras. 76–79.

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body at the place where it had been found made it impossible for the experts to establish the time of his death and eventually, accompanied by certain other omissions, made the court proceedings ineffective.229 The inadequacy of an investigation may also follow from the conduct of the competent courts. In such instances the relevant question is to what extent have the courts, in reaching their conclusions, may be deemed to have submitted the case to careful scrutiny.230 Indeed, as pointed out in Öneryıldız v. Turkey, in principle there is no need to dwell on the shortcomings in the investigation when the criminal proceedings were nonetheless instituted in the competent criminal courts which had a possibility to conduct further necessary inquiries and, in general, to meet the domestic authorities’ procedural obligation.231 In such instances, the issue to be addressed is rather “whether the judicial authorities, as the guardians of the laws laid down to protect the lives and physical and moral integrity of persons within their jurisdiction, were determined to sanction those responsible.”232 Accordingly, the protracted length of trial proceedings,233 or lack of diligence in the assessment of the trial courts’ competence and observance of the relevant procedural rules,234 or failures in summoning the witnesses235 may also lead to a violation of the state’s procedural obligation. The most obvious example of such omissions is the trial court’s lack of diligence leading to prescription of the criminal prosecution, which in itself creates a strong presumption of the domestic authorities’ failure to comply with their procedural obligations under the echr.236 Conceptually more importantly, the procedural failures may be related to the manner in which the victims were provided with the procedural guarantees during the trial before the competent criminal courts. Specifically, in ­Enukidze 229 ECtHR (Judgment) Mojsiejew v. Poland, no. 11818/02, 24 March 2009, para. 56. 230 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 239. 231 ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, para. 115. 232 ECtHR (Judgment) Ali and Ayşe Duran v. Turkey, no. 42942/02, 8 April 2008, para. 66. 233 ECtHR (Judgment) Türkmen v. Turkey, no. 43124/98, 19 December 2006, paras. 54–58. ECtHR (Judgment) Şandru and Others v. Romania, no. 22465/03, 8 December 2009, ­paras. 75–80. 234 ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, paras. 64–67. 235 ECtHR (Judgment) Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004, para. 58. 236 ECtHR (Judgment) Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004, para. 55; ECtHR (Judgment) Beganović v. Croatia, no. 46423/08, 25 June 2009, paras. 84–88; ­ECtHR (Judgment) Mete and Others v. Turkey, no. 294/08, 4 October 2011, para. 123; ECtHR ­( Judgment) Yerli v. Turkey, no. 59177/10, 8 July 2014, paras. 60–61.

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and Girgvliani v. Georgia the ECtHR found that a major deficiency in the judicial proceedings was the victims’ inability to appropriately prepare their position for and participate effectively in the trial. This was related to their restricted access to some of the crucial evidence which was moreover never examined in its original form in public and adversarial proceedings. All this consequently placed the victims at a disadvantageous position vis-à-vis the accused. Moreover, the trial court engaged in an arbitrary selection of evidence, ignoring the victims’ allegations and specific submissions concerning the facts of the case.237 Similarly, in the case of Gül v. Turkey the ECtHR criticised the domestic criminal courts for not calling the victims to give evidence at the trial and for, without any particular reason, preferring the statements given by the police officers over the allegations of the victims.238 Procedural failures may also follow from the higher appeal courts’ omissions in the assessment of a case. In Dimitrov and Others v. Bulgaria case the ECtHR criticised the Bulgarian Supreme Court of Cassation which, when overturning the convictions of the accused by fully acquitting them, overlooked the facts related to the link between the death of a victim and the actions of the accused, thus leaving some of the central questions of the case open.239 Likewise, in Ersin Erkuş and Others v. Turkey, the ECtHR criticised the failure of the Court of Cassation to explain its failure to take into account a credible medical report supporting the allegations of the victim and for giving primacy to the assertions advanced by the authorities.240 Furthermore, the reach of the procedural obligation is not exhausted by the mere action and adoption of any decision of the competent criminal courts. This follows from the fact that a violation of the procedural obligation is also conceivable when a prosecution results in the application of a manifestly inappropriate and lenient sanction.241 This was the case, for example, in ­Nikolova and Velichkova v. Bulgaria where the defendants, who stood trial on the a­ llegations of wilful police violence, were given minimum sentences 237 ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, paras. 259–267. 238 ECtHR (Judgment) Gül v. Turkey, no. 22676/93, 14 December 2000, paras. 92–94. 239 ECtHR (Judgment) Dimitrov and Others v. Bulgaria, no. 77938/11, 1 July 2014, para. 145. 240 ECtHR (Judgment) Ersin Erkuş and Others v. Turkey, no. 40952/07, 31 May 2016, para. 85. 241 An aspect commonly related to this matter is the question of suspension of the suspected police officers from service during the relevant investigation and proceedings. As a rule, it is particularly important that the agent under investigation be suspended from duty in order to prevent any appearance of collusion in or tolerance of unlawful acts (ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 125; ECtHR (Judgment) Mesut Deniz v. Turkey, no. 36716/07, 5 November 2013, para. 55).

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of ­imprisonment which were moreover suspended. That, accompanied by the lack of any disciplinary action, in particular the police officers’ suspension from service during the proceedings, led to a violation of the respondent State’s procedural obligation.242 Similar considerations led the ECtHR to criticise the domestic courts, and eventually to find a violation of the procedural obligation, in Ali and Ayşe Duran v. Turkey where the domestic courts used their discretion to mitigate the sentences of the defendants based on arbitrary conclusions.243 Or, in Darraj v. France, where the ECtHR held that a fine imposed as a sentence for a violation of Article 3 was a manifestly disproportionate sentence.244 Likewise, the minimum imposed sentence of imprisonment which was furthermore suspended in Okkalı v. Turkey245 and Fadime and Turan Karabulut v. Turkey was considered to be manifestly disproportionate,246 as well as the suspended fine in Öneryıldız v. Turkey which the ECtHR denoted as “derisory.”247 Similarly, in Kopylov v. Russia the ECtHR considered that sentences below the statutory minimum for a particularly serious case of prolonged police torture causing severe and irreparable damage to the victim’s health, which were even suspended in respect of some defendants, were manifestly disproportionate and fostered a sense of impunity.248 In Atalay v. Turkey, another case concerning police ill-treatment, a three-month sentence reduced by a quarter and then suspended was considered as a failure in the application of the criminal-law mechanisms,249 just as it was considered with regard to the application of administrative fines for police torture in the Myumyun v. Bulgaria case.250 By contrast, in Leparskienė v. Lithuania, where a police officer had been convicted for exceeding his official duties and manslaughter and sentenced to a medium term of imprisonment (two years and six months) suspended for a maximum term under the relevant domestic law (three years), the ECtHR did 242 ECtHR (Judgment) Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, para. 63. 243 ECtHR (Judgment) Ali and Ayşe Duran v. Turkey, no. 42942/02, 8 April 2008, paras. 67–68. 244 ECtHR (Judgment) Darraj v. France, no. 34588/07, 4 November 2010, para. 49. 245 ECtHR (Judgment) Okkalı v. Turkey, no. 52067/99, 17 October 2006, paras. 71–78. See also in the context of the assessment of an applicant’s victim status: ECtHR (Judgment) ­Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 123. 246 ECtHR (Judgment) Fadime and Turan Karabulut v. Turkey, no. 23872/04, 27 May 2010, para. 47. 247 ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, para. 116. 248 ECtHR (Judgment) Kopylov v. Russia, no. 3933/04, 29 July 2010, para. 141. 249 ECtHR (Judgment) Atalay v. Turkey, no. 1249/03, 18 September 2008, paras. 41–47. 250 ECtHR (Judgment) Myumyun v. Bulgaria, no. 67258/13, 3 November 2015, paras. 73–78.

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not consider this sentence insufficient or disproportionate.251 Similarly, in the case of Mileusnić and Mileusnić-Espenheim v. Croatia, the ECtHR did not consider inadequate sentences of nine and ten years’ imprisonment respectively for a war crime.252 The scope of the procedural obligation is not, however, limited to the imposition of sanctions in criminal proceedings but reaches also to the enforcement of those sanctions. Accordingly, any failures to that effect will lead to a violation of the states’ procedural obligation. This was the case in Enukidze and Girgvliani v. Georgia where the state agents, who had been leniently sentenced in the first place for wilful ill-treatment and death of an individual, were first pardoned by the President of Georgia and then recommended for release on licence by the prison authorities.253 Similarly, in Ali and Ayşe Duran v. Turkey a suspension of the execution of the perpetrators’ prison sentences was held to be incompatible with the state’s procedural obligation, as was the failure to secure extradition of the convicted offender in Agache and Others v. Romania.254 The above assessment of the relevant courts’ procedures and sanctioning should, however, not be understood as implying that the task of the ECtHR is to address issues of domestic law concerning individual criminal responsibility, or to deliver guilty or not guilty verdicts, but rather as part of its duties to determine whether the respondent state has fulfilled its international law responsibility under the echr. In doing that the ECtHR grants substantial deference to the national courts in the choice of appropriate sanctions, although it preserves a certain power of review and intervenes in cases of manifest disproportion between the gravity of the act and the punishment imposed.255 Accordingly, these principles bearing on the scope of the procedural obligation should be understood as the defining elements in the determination of the term an investigation in the ECtHR case-law on the procedural obligation. They make it clear that the term investigation surpasses the formal meaning which it could perhaps have in the domestic criminal law, encompassing instead any procedure (that should be) instituted from the moment of the commission 251 ECtHR (Judgment) Leparskienė v. Lithuania, no. 4860/02, 7 July 2009, para. 53. 252 ECtHR (Judgment) Mileusnić and Mileusnić-Espenheim v. Croatia, no. 66953/09, 19 February 2015, para. 71. 253 ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, paras. 273–277. 254 ECtHR (Judgment) Agache and Others v. Romania, no. 2712/02, 20 October 2009, para. 83. 255 ECtHR (Judgment) Ali and Ayşe Duran v. Turkey, no. 42942/02, 8 April 2008, para. 66; ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 238.

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of a human rights offence until the final implementation of the criminal-law mechanisms in the required response to that offence.256 In the words of the ECtHR, this “obligation comes into play, primarily, in the aftermath of a violent or suspicious death and in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility.”257 Nevertheless, although logically consistent, even this cannot be automatically accepted as an absolute rule as there might be instances in which the criminal proceedings and the criminal trial would have a restricted scope of review and where it would be necessary to institute further relevant proceedings. This was the case, for instance, in McKerr v. the United Kingdom where the questions surrounding the use of weapons by state agents surpassed the mere criminal responsibility of the suspects at issue in their criminal ­trial. The procedural obligation therefore required a wider examination through a procedure whereby the elements related to the state security officers’ actions could be elucidated.258 2.3.1.4 Ex Officio and Private Prosecutions In the preceding discussion concerning the applicability of the procedural ­obligation it was emphasised several times that ordinarily, save for the exceptional circumstances involving negligence, that obligation requires ex officio proceedings instituted and conducted by the competent state authorities. Indeed, an arguable complaint of ill-treatment or a life-threatening situation entails on the part of the domestic authorities an obligation to conduct “a ­thorough and effective investigation capable of leading to the identification and punishment of those responsible.”259 Any obligation of the individual concerned is exhausted by bringing such an arguable claim by any means possible to the attention of the domestic authorities.260

256 See further: ECtHR (Judgment) Myumyun v. Bulgaria, no. 67258/13, 3 November 2015, ­paras. 65–69. 257 ECtHR (Judgment) Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, para. 66. 258 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, paras. 136–137. See also: ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 174. 259 ECtHR (Judgment) Egmez v. Cyprus, no. 30873/96, 21 December 2000, para. 66. 260 ECtHR (Decision) H.D. v. Poland, no. 33310/96, 7 June 2001; ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, paras. 139–144.

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As a consequence of this approach, the possibility of private prosecution under Articles 2 and 3 is of a secondary, or rather subsidiary nature.261 Should the domestic authorities decline to investigate and, if appropriate, prosecute based on a criminal complaint, the individual concerned is left with three options: (1) to bring a complaint before the ECtHR arguing a violation of his or her substantive and procedural rights; (2) to challenge the decision of the domestic authorities, as provided in the relevant domestic law, and, should that be unsuccessful, bring a complaint before the ECtHR; or (3) to take over the prosecution as a private prosecutor, if that is provided for under the relevant domestic law. The last two options are essentially domestic remedies against a decision not to prosecute. Whereas, structurally, the possibility of challenging a decision not to prosecute does not leave any doubt as to its relevancy in the assessment of the effectiveness of the procedural obligation since it merely brings the prosecuting authorities into a position to rectify the shortcomings in the investigation and thus to prevent a violation of the echr rights,262 the possibility of a private prosecution cannot lead to such a clear-cut conclusion. This is because such a prosecution is no longer an official activity of the prosecuting authorities but rather a private initiative, which does not so obviously fit into the concept of an official effective investigation. Indeed, in Stojnšek v. Slovenia the ECtHR was confronted with a preliminary objection of non-exhaustion of domestic remedies brought by the respondent Government related to the fact that after the dismissal of a criminal complaint by the public prosecutor the applicant had failed to institute private prosecution in the competent criminal courts. The ECtHR, drawing from H.D. v. Poland which reached the same conclusion,263 held that the public prosecutor, having been informed of the criminal complaint, had been under a duty to ensure that the investigation was carried out, that the evidence was obtained and that, if evidence against the alleged perpetrators was sufficient, criminal proceedings were pursued against them. There was therefore no reason to require the individual concerned to pursue the prosecution of the suspects on his own, since that was “a responsibility of the public prosecutor who is certainly better, if not exclusively, equipped in that respect.”264 261 262 263 264

See further: infra 7.2.3.1. ECtHR (Judgment) Anık and Others v. Turkey, no. 63758/00, 5 June 2007, para. 76. ECtHR (Decision) H.D. v. Poland, no. 33310/96, 7 June 2001. ECtHR (Judgment) Stojnšek v. Slovenia, no. 1926/03, 23 June 2009, paras. 79–80. See ­further: ECtHR (Judgment) Haász and Szabó v. Hungary, nos. 11327/14 and 11613/14, 13 October 2015, para. 30; ECtHR (Judgment) Balázs v. Hungary, no. 15529/12, 20 October 2015, paras. 31–32; ECtHR (Judgment) Hajrulahu v. the Former Yugoslav Republic of M ­ acedonia, no. 37537/07, 29 October 2015, para. 78.

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This point was very well taken by the Slovenian Government which in the case of Butolen v. Slovenia,265 where the individual concerned took over the prosecution from the public prosecutor by bringing private prosecution in the competent courts that lasted for a considerable period of time, raised a preliminary objection of his failure to observe the six-month rule for bringing a complaint before the ECtHR. This followed from the fact that the period for bringing a complaint before the ECtHR started running from the moment of the decision not to prosecute, given that, according to Stojnšek, the private prosecution by the victim was not a remedy to be pursued and therefore its use and outcome could not lead to compliance with the six-month rule.266 In reply to this objection in Butolen, the ECtHR stressed that the injured party was not required to pursue a private prosecution, this being the responsibility of the public prosecutor. However, when an individual effectively takes over the prosecution, then the investigation and the ensuing trial, which concern the substance of the echr right, as well as the evidence produced therein become an inherent part of the case and must be taken into account in the assessment of compliance with the procedural obligation.267 Such conclusion was based on the same findings under the merits of a complaint of ill-treatment in the case of V.D. v. Croatia, where the domestic legal system, like the Slovenian, allows for private prosecution by the victim after the non-­ prosecution decision of the public prosecutor.268 This approach to the question of private prosecution eventually resulted in the principle that an injured party is not obliged to take over the prosecution as private prosecutor, but if he has availed himself or herself of that possibility the ECtHR must examine the effectiveness and the manner in which the relevant criminal-law mechanisms were implemented. The respondent state thereby effectively obtains a second chance to satisfy its procedural obligation. Only this time, the emphasis is no longer on the conduct of the public prosecution service and the competent courts but only on the latter, which must secure an effective procedure to the victim in his or her attempt to elucidate the circumstances of the case and to have those responsible held accountable.269 265 ECtHR (Judgment) Butolen v. Slovenia, no. 41356/08, 26 April 2012. 266 See for that effect with regard to the use of civil proceedings when an official effective criminal investigation was mandated under the ECtHR case-law: ECtHR (Decision) Orić v. Croatia, no. 50203/12, 13 May 2014, para. 33. 267 ECtHR (Judgment) Butolen v. Slovenia, no. 41356/08, 26 April 2012, para. 70. 268 ECtHR (Judgment) V.D. v. Croatia, no. 15526/10, 8 November 2011, paras. 53–54. 269 Ibid., paras. 53–54 and 84; ECtHR (Judgment) Mladenović v. Serbia, no. 1099/08, 22 May 2012, paras. 39, 53–55; ECtHR (Judgment) Otašević v. Serbia, no. 32198/07, 5 February 2013,

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A similar approach was applied with regard to the questions of effectiveness and relevancy of the partie civile model of criminal prosecution. In particular, in Slimani v. France, concerning the allegations of suspicious death in custody, the ECtHR found that the possibility of the injured party instituting criminal prosecution by joining the proceedings as partie civile, accompanied with the opportunity of claiming damages, amounted to an effective remedy under ­Article 13 echr. At the same time, it held that the state’s procedural obligation was to conduct an effective and official investigation, which should have been undertaken irrespective of any complaint made by the victim.270 This was further explained in Donder and De Clippel v. Belgium in which the applicants joined the criminal proceedings as private parties but failed to pursue the matter further before all instances of domestic jurisdiction. The ECtHR, however, emphasised the relevancy of the possibility of a private party joining the proceedings and stressed that the obligation to conduct an investigation concerning the alleged breaches of Articles 2 and 3 was on the state authorities. It thus did not hold the lack of diligence in the use of domestic remedies against the applicants.271 The same approach was followed in Riad and Idiab v. Belgium in which the ECtHR stressed that once the applicants have brought their complaints to the knowledge of the domestic authorities, requesting them to use further remedies by acting as private parties in the proceedings would impose an excessive and unnecessary burden on them.272 2.3.1.5 Specialised Jurisdictions: Military Justice It is well-enshrined in the ECtHR case-law that the relevancy and applicability of the echr standards does not stop at the gates of army barracks.273 The central issue concerning compliance with the requirements of the procedural obligation in the context of military justice arises with regard to the requirement of independence of the authorities conducting the investigation and prosecution.

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paras. 25, 34–37; ECtHR (Judgment) Habimi and Others v. Serbia, no. 19072/08, 3 June 2014, paras. 72, 76–83; ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, paras. 58, 93–96: ECtHR (Judgment) Y v. Latvia, no. 61183/08, 21 October 2014, para. 38. ECtHR (Judgment) Slimani v. France, no. 57671/00, 27 July 2004, paras. 41 and 47. ECtHR (Judgment) De Donder and De Clippel v. Belgium, no. 8595/06, 6 December 2011, paras. 56–62. ECtHR (Judgment) Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, 24 January 2008, paras. 84–85. See, for example, ECtHR (Judgment) Engel and Others v. the Netherlands, nos. 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72, 8 June 1976, para. 68; ECtHR (Judgment) Konstantin Markin v. Russia [gc], no. 30078/06, 22 March 2012, para. 136.

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This question was specifically addressed in the case of Mustafa Tunç and Fecire Tunç v. Turkey concerning the apparently suspicious death of a soldier during his military service.274 In particular, the question of independence arose with regard to the independence of the investigation involving the competent military prosecutor and investigators, as well as the independence of the review mechanism of the decision not to prosecute involving the competent military court. With regard to the independence of the investigation, the ECtHR observed that the position of the military prosecutor was protected by a number of significant safeguards, such as those related to the specific appointment system, a specific reference to his independence in the Constitution and the relevant law, as well as the prohibition on giving him instructions not to bring prosecutions. Nevertheless, a risk of a lack of independence arose with regard to the fact that the prosecutor had remained within the military appraisal system. However, this risk of a structural lack of independence was averted by the absence of any indications of a de facto lack of independence. In particular, the prosecutor had no ties, hierarchical or otherwise, with those implicated in the case and nothing in his conduct disclosed any appearance of bias. Moreover, the ECtHR found no breach of the requirement of independence with regard to the involvement of the non-prosecutorial investigators in the proceedings as they had no hierarchical or personal ties with those implicated in the case and they were in any case charged with conducting only forensic technical aspects of the investigation.275 Similar to the requirements of independence of the investigation, and based on the same criteria of assessment, the ECtHR addressed the question of independence of military courts. Whereas an issue of structural or institutional independence arose from the fact that a military officer had sat as a judge in the composition of the court examining the decision not to prosecute and that he had been under the military appraisal system, there was nothing to suggest that his de facto lack of independence when reviewing the decision not to prosecute in the case at issue. In particular, the members of the court had no hierarchical or tangible link with those implicated in the proceedings and there was nothing in their conduct disclosing any lack of independence when examining the case.276 274 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015. 275 Ibid., paras. 236–244. See further on the question of independence of the proceedings in general: infra 4.2.3.3. 276 Ibid., paras. 245–253.

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In Jaloud v. the Netherlands the ECtHR held that no issue arose with regard to the lack of impartiality of a military court who sat as a three-member chamber composed of two civilian members from the competent court and one military member. The latter, in his judicial role, was not subject to military authority and discipline and his functional independence and impartiality were the same as those of civilian judges.277 2.3.1.6 Cases with Transnational Elements Broadly speaking, the relevant principles determining the scope of or the ­limits on the echr jurisdiction also determine, by logical implication, the jurisdictional reach of the procedural obligation. In other words, given that the procedural obligation has developed as a separate and autonomous duty under the echr, the state’s responsibility with regard to that duty may be engaged under the same jurisdictional premises applicable to other substantive and procedural rights under that Convention.278 This is naturally so in so far as the state’s obligation towards an individual is conceived as a concept developing on the basis of the state’s jurisdiction.279 The principal jurisdictional competence under Article 1 echr is based on the principle of territoriality, meaning that the state is presumed to exercise its jurisdiction throughout its internationally recognised territory.280 In this connection, the state may be held responsible for its unjustified interference with the echr rights and/or for its failure to take the requisite positive actions. If the state, however, does not exercise effective control over a part of its internationally recognised territory, such as in instances of unlawful occupation, it cannot be held responsible for the infringements of substantive rights on that territory, but it still has to discharge its positive obligations by continuing to assert the duty to guarantee the enjoyment of rights and freedoms defined in the echr.281 277 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 196. 278 See further for the tensions which an “all-or-nothing approach” can create: H. King, “The Extraterritorial Human Rights Obligations of States”, 9(4) Human Rights Law Review (2009), pp. 539–542. 279 S. Besson, “L’application extra-territoriale des droits de l’homme internationaux en ­pratique : Juridictions concurrentes, obligations conjointes et responsabilités partagées”, paper submitted at the conference: The European Convention on Human Rights and ­General International Law (ECtHR 2015), p. 5. 280 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 131. 281 ECtHR (Judgment) Ilaşcu and Others v. Moldova and Russia [gc], no. 48787/99, 8 July 2004, paras. 332–335.

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Only in exceptional cases will the state’s jurisdiction be extended beyond the principle of territoriality. This will be relevant irrespective of whether or not jurisdiction extends to the territory of an echr Contracting Party.282 The first such instance of extended jurisdiction is effective control of an area, which occurs when as a consequence of lawful or unlawful military action a state exercises effective control of an area outside its internationally recognised national territory.283 The element sufficient to attract the state’s jurisdiction in these cases is the fact that the local administration survives as a result of the state’s military and other support. Accordingly, the state will have a duty to secure the entire range of the echr substantive rights,284 including, naturally, their implied procedural aspects.285 Further extension of jurisdiction beyond the territoriality principle relates to acts of the state authorities which produce effects outside the state’s own territory (state agent authority and control). This may involve various instances, such as: (1) acts of diplomatic and consular agents, present on foreign territory in accordance with international law, exerting authority and control over others; (2) public powers, such as executive or judicial, exercised by the authorities of a state on foreign territory through the consent, invitation or acquiescence of the government of that territory; and (3) the exercise of physical power and control over a person by the use of force by state agents operating outside the state’s territory.286 For the purpose of contextual convenience this extended jurisdictional scope can be denoted as the “Al-Skeini approach.” Based on these jurisdictional principles, in Al-Skeini and Others v. the United Kingdom the ECtHR found that under the echr the United Kingdom had jurisdiction requiring it to exercise the duty to investigate the deaths that occurred in the context of the British military operations in Iraq, even in the case where a victim had died from an unidentified source during an exchange of fire between the British soldiers and an unknown gunman.287 The same was true in Jaloud v. 282 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, paras. 131 and 142. 283 ECtHR (Judgment) Ilaşcu and Others v. Moldova and Russia [gc], no. 48787/99, 8 July 2004, para. 314. 284 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 138. 285 Compare with the discussion concerning the question of “criminal enforcement” of the guarantees under the cat (supra 3.2.2) and the ced (supra 3.2.3). See ECtHR (Judgment) Zalyan and Others v. Armenia, nos. 36894/04 and 3521/07, 17 March 2016, para. 214. 286 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, paras. 133–137. 287 Ibid., paras. 149–150.

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the Netherlands,288 where the victim had died from a fire at a checkpoint in Iraq manned by personnel under the command and direct supervision of the Netherlands army.289 The Al-Skeini approach was also followed in determining the jurisdiction of the United Kingdom authorities in Iraq in the case of Hassan v. the United Kingdom.290 The Al-Skeini case-law is therefore justifiably seen as the relevant authority on the matter of state jurisdiction under the echr.291 These general observations on the jurisdictional scope of the procedural obligation remain silent on two crucial points: first, it is unclear whether the procedural obligation arises in cases where no breach of the substantive aspect of a right has occurred within the state’s jurisdiction, that is to say, when it cannot be attributed to the state; and secondly, what is the relationship between the jurisdictional scope of the procedural obligation (as a duty to investigate and prosecute in human rights law) and the principles determining the state’s criminal jurisdiction. With regard to the first question, the Al-Skeini approach should be supplemented by the observations in the case of Al-Adsani v. the United Kingdom where the ECtHR stated, notably without further elaborating on the matter, that the state’s positive obligations, under the substantive and procedural limb, related only to “ill-treatment allegedly committed within its jurisdiction.”292 As in that case the alleged ill-treatment had not taken place within the jurisdiction of the United Kingdom nor had there been any causal connection between the United Kingdom authorities and its occurrence, the ECtHR found that no obligation of the United Kingdom arose under Article 3.293 It follows that a state would be required to assume jurisdiction to investigate and prosecute human rights offence if: (1) an arguable breach of the substantive aspect of a right occurred under its jurisdiction294 (although, as it follows from the facts of Al-Adsani, irrespective of whether it was committed by the state 288 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 152. 289 Compare the two cited cases with previous case-law of the ECtHR in Banković and Others v. Belgium and Others [gc], no. 52207/99, 12 December 2001. 290 ECtHR (Judgment) Hassan v. the United Kingdom [gc], no. 29750/09, 16 September 2014. 291 High Court of Justice of England and Wales, [2015] ewhc 715 (Admin), 17 March 2015, para. 65. 292 ECtHR (Judgment) Al-Adsani v. the United Kingdom [gc], no. 35763/97, 21 November 2001, para. 38; ECtHR (Judgment) M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012, para. 124. 293 Ibid., para. 40. 294 High Court of Justice of England and Wales, [2015] ewhc 715 (Admin), 17 March 2015, paras. 281–286.

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agents); or (2) there is a causal connection between the state authorities and its occurrence. In each case, however, under the Al-Skeini approach, the state would assume jurisdiction under one of the extended territoriality principles. Thus, the Al-Adsani case-law could be seen as converging with the general statement contemplated under the Al-Skeini approach. From the implications of the Al-Skeini approach, the following premises concerning the second above-noted question follow. The procedural obligation under the echr mandates for the assertion of criminal jurisdiction under the principle of territoriality, irrespective of whether it relates to acts committed on the internationally recognised territory of the state or a territory on which it exercises effective control, or on board craft and vessels registered in, or flying the flag of, that state.295 The jurisdictional principle of state agent authority and control would correlate to the qualified active personality principle, being limited to actions (and possibly omissions) of state agents out of the state’s territory but excluding actions or omissions of private parties who might be nationals of the state at issue, unless possibly if they act under the acquiescence or instigation by the authorities. At the same time, the principles of passive personality and universality would not find their correlates in the general jurisdictional rules under the echr.296 295 ECtHR (Judgment) Banković and Others v. Belgium and Others [gc], no. 52207/99, 12 December 2001, para. 73; ECtHR (Judgment) M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012, para. 126; ECtHR (Judgment) Bakanova v. Lithuania, no. 11167/12, 31 May 2016, para. 63. 296 In general, the criminal jurisdiction of a state may be territorial or extraterritorial. The former, as the central jurisdictional principle, relates to offences that take place on the state’s territory, commonly including board craft and vessels registered in, or flying the flag of, that state, whereas the latter may have one of the following forms: active personality principle (or statute of perpetrator) – jurisdiction over an offender who is a national of the state; passive personality principle (or statute of victim) – when offences are committed against a national of the state; protection principle – concerning offences against the fundamental interests of the state; and universality principle – jurisdiction for particularly serious crime endangering the world order as such, although without direct contact with the state at issue, namely its territory, direct interests or nationals (see further: T. Vander Beken, G. Vermeulen, S. Steverlynck and S. Thomaes, Finding the Best Place for Prosecution (Antwerp, Maklu 2002), pp. 12–14). A study of REDRESS and fidh conducted in 2010 shows that, at the time, all eu Member States (twenty-seven, without Croatia) based their extraterritorial jurisdiction in relation to at least one crime in international law on the principles of active personality and universality, while, according to the available information, twenty-three on the principle of passive personality (REDRESS and fidh, Extraterritorial Jurisdiction in the European Union: A Study of the Laws and Practice in the 27 Member States of the European

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The difficulty related to the above contemplations lies in the fact that the general principles of jurisdiction under the echr do not conclusively provide for a solution in the specific situations arising in cases brought before the ­ECtHR concerning the duty to investigate and prosecute human rights offences with transnational elements. This, however, should not be seen as an impediment to dividing and tailoring the jurisdictional scope of the echr with regard to the reach of the procedural obligation in an individual situation,297 since it is not unusual in matters of jurisdiction to find that that the specific cases do not necessarily fit the general jurisdictional premises.298 For the purpose of the present enquiry the following approaches can be devised in the case-law related to the duty in question. It should be first observed that the practical competence or the existence of a legal authority to act has primacy over any other competing jurisdictional consideration. This is evident in the case of Gray v. Germany and the United Kingdom where Germany exercised its criminal jurisdiction over its national who had committed an offence of medical negligence in the United Kingdom (active personality principle), with an effect of preventing his surrender to the United Kingdom authorities for the same offence. The victims complained to the ECtHR that by prosecuting the case through summary penal order procedure, Germany had failed to discharge its procedural obligation, while the United Kingdom had failed to do what was necessary to coordinate the prosecution at the transnational level so that the proceedings could be effectively conducted in the United Kingdom. What is relevant for the present discussion is the fact that the ECtHR found that German authorities could not be reproached for exercising their criminal jurisdiction under the relevant national law and that consequently, when this resulted in a bar to surrender the suspect to the United Kingdom, there was nothing to suggest that the British authorities had failed in their procedural obligation.299 Further, in the case of Palić v. Bosnia and Herzegovina two suspects of enforced disappearance as a crime against humanity fled from Bosnia and Herzegovina to Serbia and, despite the international arrest warrants against them, Union (2010), p. 17). In Croatia extraterritorial jurisdiction can be based on all of the cited principles (Articles 14–17 of the Criminal Code). 297 ECtHR (Judgment) Al-Adsani v. the United Kingdom [gc], no. 35763/97, 21 November 2001, para. 137. 298 K. da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Leiden, Martinus Nijhoff Publishers 2013), p. 250. 299 ECtHR (Decision) Gray v. Germany and the United Kingdom, no. 49278/09, 18 December 2012, para. 94.

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their extradition was impossible given that they were citizens of Serbia, which did not extradite its citizens. This brought the investigation in Bosnia and Herzegovina to a standstill and the victim’s next-of-kin complained against Bosnia and Herzegovina before the ECtHR alleging violation of the procedural obligation under Article 2. The ECtHR held, as in Gray, that Bosnia and Herzegovina could not be held liable for non-extradition of suspects from Serbia. It continued, however, with a somewhat dubious assertion, noting that whereas it was true that, under an international agreement, Bosnia and Herzegovina could have requested Serbia to take proceedings in this case, that could not influence the assessment of its compliance with the procedural obligation since the victim could have reported the case herself to the Serbian authorities. Moreover, the ECtHR stressed that she could have lodged an application against Serbia if she considered that Serbia had violated her echr rights.300 Given that there was nothing to suggest that this assertion was not genuine, the ECtHR thereby implied a possibility of examining the responsibility of Serbia in the circumstances. The latter assertion in Palić is of particular importance since, on the one hand, there was no evidence that the two suspects at issue acted in Bosnia and Herzegovina as Serbian state agents, which excludes Serbia’s jurisdiction over their acts under the state agent authority and control principle; and, on the other hand, there was no discussion in the Palić judgment whether Serbia had exercised effective control over the relevant territory of Bosnia and Herzegovina. The general principles on establishing the echr jurisdiction would not therefore be applicable to Serbia. At the same time, from the perspective of criminal law, Serbia could exercise its jurisdiction based on the universality principle (and potentially on the active personality principle with regard to private persons who were citizens of Serbia, although not at the moment of their alleged commission of the offence), which, as we have seen, does not find its correlative in the echr general rules on jurisdiction. However, assuming that the ECtHR has not overlooked these jurisdictional considerations,301 it follows from Palić that, on the basis of the existence of a 300 ECtHR (Judgment) Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011, para. 65. 301 It should be observed in this context that in Šermet v. Bosnia and Herzegovina, Montenegro and Serbia, an applicant brought a complaint against the three countries, concerning the killing and disappearance of his relatives in Bosnia in 1992. In so far as relevant for the present discussion, it appears that he complained against Montenegro and Serbia only under the substantive aspect of the disappearance of his relatives. However, the ECtHR declared this complaint inadmissible on the grounds of lack of temporal jurisdiction. In these circumstances it is impossible reach a particular conclusion concerning the implications of the Palić case-law on the procedural obligation, although it should be observed

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legal authority to act, the ECtHR contemplated the jurisdictional scope of the procedural obligation by relying on conditional universal jurisdiction.302 Thus, Serbia would be under the obligation to investigate and prosecute the suspected perpetrators of the crime simply because they were on its territory, irrespective of the fact that no issue of a substantive violation arises with regard to the jurisdiction of the Serbian authorities. This, however, does not directly fit into the position taken in Al-Adsani and nor does it consequently fit into the general principles set out in Al-Skeini. Moreover, Serbia’s procedural obligation, as it follows from the reading of the facts in Palić in line with the Gray principles, would be met either by prosecuting or extraditing the suspects. At the same time, given that a complaint was not brought before the ECtHR concerning Serbia’s responsibility but rather the responsibility of Bosnian and Herzegovinian authorities for not engaging in the mechanisms of international legal assistance in criminal matters by transferring the case to Serbia under the relevant international agreements, the procedural obligation of Bosnia and Herzegovina did not reach so far as to require its authorities to take such procedural actions. This appears compatible with the position in Gray concerning the responsibility of British authorities in that case, but with an important distinction: in so far as it can be discerned from the Palić judgment, Serbia – unlike Germany in Gray – did not prosecute the suspects itself, which amounted to impunity for the crime at issue.



that the ECtHR noted, in passim, that there was much evidence of direct and indirect participation by the Serbian forces in military operations in Bosnia and Herzegovina, which would generally attract jurisdiction on the basis of the Al-Skeini case-law. However, the ­ECtHR thereby referred to the icj judgment Application of the Convention on the ­Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), of 26 February 2007, where it found that despite much evidence of direct and indirect participation of the Serbian forces in military operations in Bosnia and Herzegovina, the acts of those who committed genocide at Srebrenica could not be attributed to Serbia under the general rules of state responsibility (see further: ECtHR (Decision) Šeremet v. Bosnia and Herzegovina, Montenegro and Serbia, no. 29620/05, 8 July 2014, para. 48). 302 Universal jurisdiction may be conditional, which exists only if a state has a possibility to prosecute a defendant who is in its custody, or absolute, where a state may prosecute a defendant irrespective whether he or she is in custody (M. Jouet, “Spain’s Expanded Universal Jurisdiction to Prosecute Human Rights Abuses in Latin America, China, and Beyond”, 35 Georgia Journal of International and Comparative Law (2007), pp. 498–499). See further for the difficulties arising out of the exercise of the principle of absolute universal jurisdiction: D. Vandermeersch, “Prosecuting International Crimes in Belgium”, 3 Journal of International Criminal Justice (2005), pp. 400–421.

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The above conclusions on the jurisdictional scope of the echr with regard to the procedural obligation could, indeed, be put in doubt when viewed against some other ECtHR cases touching upon the questions of jurisdiction and international legal assistance in the prosecution of transnational human rights offences. In particular, in Aliyeva and Aliyev v. Azerbaijan a complaint was brought before the ECtHR by the next-of-kin of an Azerbaijani national who had been killed in Ukraine in the circumstances involving two other ­Azerbaijani nationals, one of whom was an employee of the Azerbaijani embassy in Kyiv and the other a military officer. Based on an international ­agreement between Ukraine and Azerbaijan the case was transferred to Azerbaijan, but the Azerbaijani authorities discontinued further proceedings against the suspects on the grounds of lack of evidence.303 In these circumstances, if one applied the general test of the echr jurisdiction, it would follow that Azerbaijan has jurisdiction based on the state agent authority and control principle, which could be engaged even if a state agent acted ultra vires.304 It would allow the procedural obligation of Azerbaijan to be established from the perspective of the Al-Skeini approach, given that the killing occurred within its jurisdiction. Further, if the Palić inferences were applied, the jurisdiction of Azerbaijan would follow from the practical competence or the existence of a legal authority to act, since the alleged perpetrators were on its territory. Moreover, from the perspective of criminal law, Azerbaijan would have jurisdiction based on the active and passive personality principles. However, although the issue of jurisdiction had not been raised by the parties, the ECtHR ex officio raised the ratione loci question in connection with the fact that the death occurred in Ukraine. It then concluded that “regardless of where the death occurred, in so far as Azerbaijan assumed the obligation of conducting the investigation … and agreed to continue the criminal investigation commenced by the Ukrainian authorities, it was bound to conduct such an investigation in compliance with the procedural obligation under Article 2.”305 It would follow that the Azerbaijani jurisdiction was engaged only in so far as its authorities decided to take over the prosecution from Ukraine. Otherwise, it would not have the duty under the echr to conduct an investigation and prosecution. If this is so, then it clearly does not sit well either with the Al-Skeini approach (related to the state agent authority and control principles) or with 303 ECtHR (Judgment) Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, 31 July 2014. 304 ECtHR (Judgment) Ilaşcu and Others v. Moldova and Russia [gc], no. 48787/99, 8 July 2004, para. 319. 305 ECtHR (Judgment) Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, 31 July 2014, para. 57 (emphasis added).

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the Al-Adsani position, nor with the Palić conclusions (related to the practical competence implications). It does, however, emphasise the importance and define the scope of the practical competence or the existence of legal authority to act, attracting the state’s jurisdiction to investigate and prosecute human rights offences. Further, in Agache and Others v. Romania, concerning the killing of a person during the December 1989 anti-communist demonstrations in Romania, the ECtHR was confronted with the question of whether the Romanian authorities could be held responsible under the procedural limb of Article 2 for not securing extradition of the convicted offenders. Should this question be assessed in compliance with the Palić and Gray position the answer would be that R ­ omania, after doing everything necessary within its jurisdiction to prosecute and punish those responsible, could not be reproached for not engaging diligently in some further measures of international legal assistance in criminal matters. Rather, the question would arise with regard to the other country which is in a position to extradite the offender. However, this was not the conclusion of the ECtHR. It found that Romania had failed to meet its procedural obligation under Article 2 for not securing the necessary measures leading to the extradition of the offenders.306 The ECtHR reached the same conclusion in a secret rendition case, Nasr and Ghali v. Italy, in which it criticised the Italian authorities for not seeking extradition of a convicted offender from the United States.307 Moreover, in M. and Others v. Italy and Bulgaria, although reiterating its general case-law according to which the echr does not contain a right which requires a state to exercise diplomatic protection, or espouse an applicant’s complaints under international law or otherwise to intervene with the authorities of another state on his or her behalf, the ECtHR, observed that the Bulgarian authorities had been diligent in pressing the Italian authorities concerning the particular case.308 The above case-law would suggest that measures of international legal assistance in criminal matters fall within the scope of the procedural obligation. The matter was clarified in Rantsev v. Cyprus and Russia concerning 306 ECtHR (Judgment) Agache and Others v. Romania, no. 2712/02, 20 October 2009, para. 83. The IACtHR also included the duty to seek extradition, or more precisely the aut dedere aut punire principle, in the scope of the procedural obligation (see IACtHR (Judgment) Goiburú et al., v. Paraguay, 22 September 2006, para. 132; see further: C. Martin, “Catching Up with the Past: Recent Decisions of the Inter-American Court of Human Rights Addressing Gross Human Rights Violations Perpetrated During the 1970–1980s”, 7(4) Human Rights Law Review (2007), pp. 788–789). 307 ECtHR (Judgment) Nasr and Ghali v. Italy, no. 44883/09, 23 February 2016, para. 272. 308 ECtHR (Judgment) M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012, para. 127.

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allegations of human trafficking from Russia to Cyprus and the subsequent suspicious death of the victim in Cyprus, raising an issue under Article 4 (prohibition of slavery and forced labour) and Articles 2 and 3.309 In particular, in Rantsev the ECtHR rejected the Russian Government’s general ratione loci objection pointing out that the responsibility of Russia was engaged with regard to the alleged failures in taking the necessary measures to protect the victim from the risk of trafficking and exploitation and to conduct an investigation into the circumstances of her arrival in Cyprus, her employment there and her subsequent death. Moreover, irrespective of the fact that nothing suggested that Russia was responsible for the victim’s death, it had a procedural obligation, particularly assumed under other international mechanisms it was a party to, to investigate the allegations of trafficking and to secure evidence from witnesses residing in Russia.310 More specifically, in the assessment of the merits of the complaint under Article 2 with regard to Russia, the ECtHR referred to the Al-Adsani principle pointing out that the death took place in Cyprus and that, as a rule, it was solely the responsibility of the Cypriot authorities to ensure an effective official investigation. Accordingly, Russia’s responsibility could have been engaged only in the case of existence of special features.311 Indeed, unlike with regard to the broader picture of human trafficking, under no general principle could the Russian procedural obligation have been engaged in connection with the death of the victim, given that the death did not occur within its territory or a territory under its effective control, nor was the death related to the activities of its state agents. Moreover, even under the Palić case-law, the procedural obligation could not have been engaged since there was no indication that any of the suspects of the alleged murder resided on the territory of Russia. It should be noted, however, that Russia at that time had jurisdiction based on the passive personality principle, which the Russian Government acknowledged before the ECtHR, and which was invoked by the applicants who argued that the principle engaged the Russian authorities’ procedural obligation under the echr. In this connection the ECtHR made an unclear but substantively acceptable assertion by noting that the echr did not require the domestic authorities’ criminal laws to provide for universal jurisdiction in cases involving 309 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010. See further: D. Shaver and L. Zwaak, “Rantsev v. Cyprus and Russia: Procedural Obligations of Third Party Countries in Human Trafficking under Article 4 echr”, 4 Inter-American and European human rights journal (2011), pp. 118–135. 310 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 207. 311 Ibid., paras. 243–244.

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the death of one of their nationals.312 Moreover, it stressed that there were no special features to conclude that Russia had a free-standing obligation to investigate the victim’s death.313 Notwithstanding perhaps only the terminological confusion over the universal and passive personality jurisdiction, this assertion in Rantsev supports the conclusion that the criminal jurisdiction construed under the procedural obligation corresponds to the general echr jurisdiction. This conclusion has already been reached above where it was noted that only the passive personality and universality principles (as well as the active personality principle in the case of actions of private parties) do not find their correlatives under the general echr jurisdiction rules. Nevertheless, as noted in the introduction to the analysis of the Rantsev judgment, the ECtHR found that Russia had an obligation to engage in measures of international legal assistance in criminal matters due to the fact that certain evidence had been located on its territory. In particular, after having found that the procedural obligation mandated the Cypriot authorities to engage in such international cooperation in obtaining evidence, the ECtHR stressed that “the corollary of the obligation on an investigating State to secure evidence located in other jurisdictions is a duty on the State where evidence is located to render any assistance within its competence and means sought under a legal assistance request.” Having found that Russia had complied with that obligation, the ECtHR concluded that there had been no violation of the Russian authorities’ procedural obligation under the echr.314 With regard to the complaint under Article 4 (prohibition of slavery and forced labour), the ECtHR took cognisance of the fact that human trafficking is a problem which is often not confined to the domestic arena but rather includes the country of origin, any country of transit and the country of destination. Accordingly, relevant evidence and witnesses may be located in any of the three states. Thus, it found logical the obligation provided under the European Anti-Trafficking Convention that requires each member state to establish jurisdiction over any trafficking offence committed in its territory in order to secure effective investigation and prosecution of such offences. In addition, the states must cooperate effectively with the relevant authorities of other states concerned in the investigation of events which occurred outside their territories, 312 Note that the passive personality principle is generally seen as the most controversial jurisdictional principle (G.R. Watson, “The Passive Personality Principle”, 28(1) Texas International Law Journal (1993), p. 2), with for instance a very limited scope under the cat and ced where it is expressly provided (see supra 3.2.2 and 3.2.3). 313 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 244. 314 Ibid., paras. 241, 245–246.

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which is in compliance with the Palermo Protocol315 and ordinarily features in international agreements on mutual legal assistance.316 Against these principles, the ECtHR established the Russian authorities’ procedural obligation to investigate the circumstances of the victim’s recruitment and departure from Russian territory to Cyprus and, after having found failures in that respect, concluded that there had been a violation of the procedural obligation under Article 4. These findings could be presented in more direct terms by asserting that the state must prosecute not only the commission of but also any complicity in the commission of human rights offences under its jurisdiction. Several important inferences may be drawn from Rantsev. Firstly, the relevant international material on a particular matter may inform the echr standards with regard to the scope of the procedural obligation. Secondly, there may be special features conducive to an expanded jurisdictional scope of the procedural obligation, which could for instance involve the existence of the authority to act observed in Gray, Palić and Aliyeva and Aliyev. And thirdly, even if the jurisdictional principles did not engage the procedural obligation in its full capacity, in particular in relation to the duty to investigate, prosecute and punish those responsible, it would nevertheless require the state concerned to pursue mechanisms of international cooperation in criminal matters, for example by securing the available evidence. It thus follows that, even in the absence of a factual power to prosecute an offender who is out of its jurisdiction, the state would still have to assert jurisdiction with regard to the procedural obligation to investigate. This is an obligation which, in the words of Donald Shaver and Leo Zwaak, can be denoted as an international procedural obligation.317 Having observed the central premises on the jurisdictional scope of the procedural obligation under the echr, we can now proceed by contemplating the likely solutions to the two questions set out in the introductory part to this discussion. The first question concerns the existence of jurisdiction in cases where no breach of the substantive aspect of a right can be attributed to the actions or omissions of the state, and the second question looks at the relationship between the jurisdictional scope of the procedural obligation under the echr and the principles determining the state’s general (criminal) jurisdiction. 315 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, 15 November 2000. 316 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 289. 317 Shaver and Zwaak, supra n. 4.309, p. 131.

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The enquiry in this context can proceed by a contemplation of several possible jurisdictional scenarios: (1) occurrence of a human rights offence, either by commission or complicity, on territory under the control of a state; (2) occurrence of a human rights offence abroad under the authority and control of the state agents, either by their direct commission of the offence or their acquiescence or instigation;318 (3) occurrence of a human rights offence abroad implicating a national of an echr Contracting State acting in his or her private capacity; (4) occurrence of a human rights offence abroad against a national of an echr Contracting State; and (5) occurrence of a human rights offence abroad involving third nationals, as the perpetrator and the victim. The cases contemplated under (1) and (2) can be answered with reference to the general jurisdictional principles under the echr. In both instances a state party to the echr would have to assert its jurisdiction and accordingly investigate and prosecute human rights offences, either under the (extended) territoriality principle in the case under (1), or under the state agent control and authority principle in the case under (2). The hard cases, which – as we have seen – cannot be answered with reference to the general jurisdictional principles, are contemplated under (3), (4) and (5). Before proceeding into further discussion it should be noted that it is commonly accepted amongst commentators that the question of jurisdiction in international human rights law, in the concrete case under the echr, does not necessarily correspond to jurisdiction in general international law.319 In particular, as Marko Milanović explains, jurisdiction in human rights treaties is meant to denote a factual power of a state over persons under its jurisdiction rather than jurisdiction over a territory, or jurisdiction which would relate to the traditional international law prerogatives of jurisdiction,320 namely prescription, enforcement and adjudication.321 Indeed, as seen in Al-Skeini and ­Jalound, the jurisdiction of the United Kingdom and the ­Netherlands ­respectively was 318 See further: ECtHR (Decision) Andreou v. Turkey, no. 45653/99, 3 June 2008. 319 M. Milanović, “From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties”, 8(3) Human Rights Law Review (2008), p. 417; K. da Costa, supra n. 4.298, p. 13; S. Miller, “Revisiting Extraterritorial Jurisdiction: A Territorial Justification for Extraterritorial Jurisdiction under the European Convention”, 20(4) European Journal of International Law (2010), p. 1231. 320 Milanović, supra n. 4.319, pp. 417–436. 321 Prescriptive extraterritorial jurisdiction is the capacity of a state to legislate; enforcement jurisdiction is the capacity of the state to secure compliance with those laws, and adjudicative jurisdiction is the capacity of the courts of a state to resolve disputes (D. Ireland-Piper, “Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine”, 9(4) Utrecht Law Review (2013), p. 69).

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e­ stablished because of the fact that the victims had been under the factual power of their agents and not because of their capacity to prescribe and enforce laws on the territory of Iraq. In this context we could also observe that the scope of universal jurisdiction in general international law is often limited by the gravity of the offences in question,322 whereas there is nothing implied in the assertion of the conditional universality in Palić which would suggest that the gravity of the offence was the central consideration for the ECtHR when making the statement that the victim could bring her application against Serbia. Moreover, Milanović has argued that jurisdiction under human rights treaties is not directly related to the question of attribution in the law of state responsibility in the sense that jurisdiction does not imply attribution of an act directly to the state. This is because in such situations state responsibility may arise from its failure to comply with the positive obligations.323 Milanović rather sees jurisdiction in human rights law as a question of the possibility of a state to exercise factual power and authority over individuals.324 In the preceding discussion we have observed this capacity as the practical competence or the existence of a legal authority to act.325 In the practical reasoning it functions either as a criterion of jurisdictional primacy in the case of a positive conflict such as in Gray, or as a special feature attracting the separate and autonomous duty of a state to investigate and prosecute a human rights offence, as it follows from Palić and Rantsev. It is essentially a factual c­ ompetence 322 It is commonly considered that the following human rights offences require universal jurisdiction: genocide, crimes against humanity, war crimes, torture, and some other grave crimes such as enforced disappearances, slavery and piracy. See further: International Law Association London Conference, Committee on International Human Rights Law and Practice, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences (2000), pp. 4–9; M.T. Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses”, 34(4) Human Rights Quarterly (2011), pp. 945–950; C.L. Sriram, “Universal Jurisdiction: Problems and Prospects of Externalizing Justice”, 7 Finnish Yearbook of International Law (2001), p. 50; fidh, V ­ ictims’ Rights before the International Criminal Court: A Guide for Victims, their Legal Representatives and ngos (2007), Chapter i, p. 13; G.R. Watson, “Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction”, 17(41) Yale Journal of International Law (1992), pp. 43–44. 323 Milanović, supra n. 4.319, pp. 436–446. 324 Ibid., p. 447. 325 The qualification “legal” in this context is not meant to refer to “an abstract capacity to act” but rather to exclude any implications of unlawful or ultra vires actions of the state or its agents.

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or capacity, which should not be confused with the attribution to the state of a substantive violation of a right. Likewise, it should be distinguished from the enforcement jurisdiction which, unlike the practical competence to act, firstly requires the existence of prescriptive jurisdiction.326 This practical competence or the existence of a legal authority to act was essentially contemplated in the case of O’Loughlin and Others v. the United K ­ ingdom where, concerning the question whether the United Kingdom authorities had failed to assist in the investigations carried out into the deaths that occurred in the Republic of Ireland, the ECtHR stressed: [W]here suspected perpetrators of a human rights offence carried out elsewhere are known to be present within the jurisdiction of a Contracting State, and evidence of a criminal offence may be secured, the fundamental importance of Article 2 requires that the authorities of that State of their own motion take effective measures in that regard. Otherwise, those indulging in cross-border attacks will be able to operate with impunity and the authorities of Contracting State where the unlawful attacks have taken place will be foiled in their own efforts to protect the fundamental rights of their citizens. The nature and scope of those measures will, inevitably, depend on the circumstances of the particular case and it is not appropriate for the Court to attempt to be more specific in this decision.327 The question is, however, in respect of what should this practical competence or the existence of a legal authority to act, or as Milanović calls it factual ­power, exist. We should firstly observe that the implications following from the R ­ antsev case suggest that there would not be a free-standing obligation to ­investigate and prosecute a human rights offence committed in the circumstances under (3), (4) and (5), unless there are special features of the case conducive to the contrary. These special features would primarily relate to the existence of factual legal authority or power of the state to investigate and prosecute the offence as contemplated in O’Loughlin. That would in particular exist if the offender and/or the relevant evidence were under the jurisdiction (in the general sense) of a state, where the state would be, as we have seen in Palić and Gray, obliged to investigate and prosecute or extradite the offender. The case-law in Gray 326 R. O’Keefe, “Universal Jurisdiction: Clarifying the Basic Concept”, 2 Journal of International Criminal Justice (2004), p. 741; Milanović, supra n. 4.319, p. 424. 327 ECtHR (Decision) O’Loughlin and Others v. the United Kingdom, no. 23274/04, 25 August 2005.

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leads to the conclusion that, similar to the aut dedere aut judicare obligation under the cat and ced, it would be for the state to decide to which of the two options it would give precedence. In any case, however, as it follows from ­Rantsev, if the state was not in a position to assert its fully-fledged jurisdiction over the offender so as to be able to investigate and prosecute him or her, it would be obliged to pursue the mechanisms of international cooperation in criminal matters by, for instance, securing the available evidence. It thus follows that the legal and factual authority and power of the state to act is a condition sine qua non for attracting its jurisdiction to investigate and prosecute human rights offences in the circumstances under (3), (4) and (5). Accordingly, for instance, any general jurisdictional principle, such as absolute universal jurisdiction, would not find its correlative in this context. A more difficult question is whether the existence of legal and factual authority and the power of the state to act, in the circumstances under (3), (4) and (5), would in itself be sufficient to attract that state’s duty to investigate and prosecute a human rights offence. This question arises from the fact that the echr is an instrument designed to govern relations between the state and an individual,328 that is to say the state, which is in a position to exercise its legal authority to act, and an individual, who is the beneficiary of, amongst other things, the state’s procedural obligation (in this context, the victim). In other words, it should be borne in mind that the echr is not a mechanism of international legal assistance in criminal matters nor is it a treaty establishing jurisdictional scope of the state’s criminal law. There should therefore be some kind of a link between the echr Contracting State, which has the legal and factual authority and power to act, and the occurrence of a human rights offence to the detriment of a particular victim. This concretely means that in instances described under (3), (4) and (5) above, where jurisdiction cannot be established by the mere fact that the substantive breach of a right occurred under the state’s general jurisdiction and thus immediately triggered the procedural obligation of that state (Al-Adsani situation), the victim must be in a position to invoke his or her echr right to an effective application of criminal-law mechanisms in human rights protection against the state which is in a position to actually exercise the legal and factual authority to investigate and/or prosecute. In other words, there must be a causal connection between the state and the occurrence of a human 328 M. Craven, “Human Rights in the Realm of Order: Sanctions and Extraterritoriality”, in F. Coomans and M.T. Kamminga, Extraterritorial Application of Human Rights Treaties (Antwerp, Intersentia 2004), p. 241; ECtHR (Decision) Ben El Mahi and Others v. Denmark, no. 5853/06, 11 December 2006.

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rights offence outside its original jurisdiction, within the meaning of the AlAdsani case-law. This arguably arises in the case where a human rights offence occurred under the jurisdiction (within the meaning of general rules) of one of the echr Contracting States other than the one which has the legal and factual authority and power to act. In such a case the state under whose jurisdiction the ­offence occurred would have, as contemplated by Tom Vander Beken, primary jurisdiction, based on one of the general jurisdictional principles (original ­jurisdiction), and the state in a position to actually exercise its legal authority to investigate and/or prosecute would have derivative jurisdiction, based on the existence of its factual and legal authority or power to act.329 Both states would have some sort of concurrent jurisdiction.330 In this sense the factual and legal authority or power to act can, within the theory advanced by Vander Beken, be denoted as a weak or minor contact point that is in itself insufficient to justify jurisdiction, but is relevant for deriving ­jurisdiction from the state which has a strong contact point with the ­offence (or the original jurisdiction). Accordingly, that state, as implied in Gray, Palić and Rantsev, would either have to investigate and/or prosecute the human rights offence or extradite the offender to the state which has original jurisdiction. In other words, due to its partial authority to act, its jurisdiction would arise out of substitution of a state which has original jurisdiction. This would normally be the case where, for instance, a human rights offence occurred on the territory of an echr Contracting State, which would thereby have the strongest link with the offence,331 and where the offender 329 Tom Vander Beken distinguishes primary and derivative jurisdiction. The former is territorial jurisdiction and the standard extraterritorial types of jurisdiction (active and passive personality, protection principle and territoriality). Derivative jurisdiction is an assertion of jurisdiction by a state which has no direct contact point or has only a minor contact point with an offence. The state, however, asserts jurisdiction by substitution of a state which has original jurisdiction or a strong contact point with the offence. In criminal law there are two variants of derivative jurisdiction: substitution under the principle aut dedere aut iudicare and adoption of the proceedings. See further: T. Vander Beken, ­Forumverdeling in het international strafrecht. De verdeling van misdrijven met aanknopingspunten in meerdere staten (Antwerp, Maklu 1999); T. Vander Beken, The best place for prosecution of international corruption cases. Avoiding and solving conflicts of jurisdiction (Seoul, The Third Global Forum on Fighting Corruption and Safeguarding Integrity 2003), pp. 4–10; Vander Beken, Vermeulen, Steverlynck and Thomaes, supra n. 4.296, pp. 10–18. 330 See further: Besson, supra n. 4.279. 331 A. Abelson, “The Prosecute/Extradite Dilemma: Concurrent Criminal Jurisdiction and Global Governance”, 16(1) University of California Davis Journal of International Law and

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is under the jurisdiction of the authorities of another echr Contracting State. In such a case, the question against which state would the victim be able to claim his or her right to effective application of criminal law-­mechanisms would, as we have seen in Palić, be merely a question of practical institutional competence.332 By contrast, if a human rights offence occurred under the jurisdiction of a state which is not one of the echr Contracting States, there would be no original jurisdiction from which an echr Contracting State that has the legal and factual capacity to act, could derive its jurisdiction with regard to the victim’s claim to effective application of criminal-law mechanisms in human rights protection. For instance, in Belgium, unlawful killing is an act of murder and at the same time a breach of the right to life under Article 2, whereas in Kazakhstan, where the echr does not apply, it can only be a crime of murder but not a breach of an echr right. In this example Belgium could be said to have original jurisdiction over the breach of an echr right whereas Kazakhstan has no such jurisdiction or strong contact point with the breach of an echr right. Accordingly, another echr Contracting State, which would have the legal and factual capacity to act because the perpetrator may be in its custody, could not derive its jurisdiction with regard to the right-claim to effective application of criminal law-mechanisms from Kazakhstan, but it could, in the described circumstances, derive it from Belgium.333 This, of course, does not call into question the possible existence of criminal jurisdiction under the applicable criminal law, but that is in itself a different question from the one arising under the human rights-based claim of effective Policy (2009), p. 28. Note that territoriality in the context of jurisdiction may relate to subjective territoriality (where the offence is committed on the territory of a state) or objective territoriality (where some elements of an offence occur on the territory of a state) or effects theory (where the effects are felt on the territory of a state). See further: ­Ireland-Piper, supra n. 4.321, pp. 72 and 78; C.L. Blakesley and O. Lagodny, “Finding Harmony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights, and Issues of Extraterritoriality Under International Criminal Law”, 24(1) Vanderbilt Journal of Transnational Law (1991), pp. 15–19. 332 Note that the questions of conflict of jurisdiction are out of the scope of this study. In this respect see further: Vander Beken, Vermeulen, Steverlynck and Thomaes, supra n. 4.296. 333 Thereby, through a logical conjunction, an extended jurisdictional scope restricted to the echr espace juridique has been essentially contemplated (see in this context: ECtHR (Judgment) in Banković and Others v. Belgium and Others [gc], no. 52207/99, 12 December 2001, para. 80; ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 142).

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application of criminal law-mechanisms. Having said that, it should be noted that once a state has decided to assert its jurisdiction over the prosecution of a human rights offence for reasons not related to the echr, it would under the Aliyeva and Aliyev case-law in any case be bound to comply with the requirements of the procedural obligation. This would most commonly involve cases where the state asserts jurisdiction under the relevant principles of national criminal law. Accordingly, where the state has decided to prosecute a human rights offence it is obliged to secure the full scope of the procedural obligation, including the enforcement of the sanction. That would also imply, as seen in Agache and Others v. Romania, the duty to seek extradition of the convicted perpetrator of the human rights offence. Having analysed the jurisdictional scope of the procedural obligation under the echr, with regard to our second question we should note that these jurisdictional principles in practical reasoning operate as complementary principles for asserting criminal jurisdiction by the echr Contracting States with regard to the human rights offences with transnational elements. Accordingly, for instance, in what can be seen as a prime example of effective domestication of the echr standards, the High Court of Justice of England and Wales (hereinafter: “the ewhc”), in the case of Al-Saadoon and Others v. the Secretary of State for Defence,334 examined whether the United Kingdom authorities assumed jurisdiction to investigate and prosecute alleged human rights offences committed during that country’s military intervention in Iraq on the basis of the echr standards. Without going into the substantive validity of the particular findings of the ewhc, we can observe that it found such an obligation to exist in cases involving alleged breaches of human rights which occurred while an individual was in the custody of British forces, including instances of enforced disappearances, or where an individual was shot or ill-treated by a British state agent.335 It therefore appears that the jurisdictional standards relevant to the procedural obligation in human rights law are capable of complementing any possible jurisdictional principles which may be provided in the relevant provisions of national criminal law. The only question which remains to be further discussed in the particular circumstances is this: under which procedural ­arrangement can these jurisdictional standards of the right-claim to effective application of criminal law-mechanism be effectuated.

334 [2015] ewhc 715 (Admin), 17 March 2015. 335 Ibid., para. 294.

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2.3.2 Institution of Proceedings In cases in which the procedural obligation should be engaged only as a requirement of the existence of an effective judicial system, the relevant procedures must obviously be instituted upon the initiative of the individual concerned.336 The state authorities’ obligation in this respect is limited to providing an effective procedural mechanism by which the relevant procedures could be effectively instituted and later on conducted. This can be observed in the case of Starčević v. Croatia, concerning private criminal prosecution for death caused by a road accident, where the ECtHR reproached the domestic courts for failing to properly assess the formal requirements for lodging an indictment, which consequently led to an incorrect judicial formation hearing the case and protracted and altogether ineffective criminal proceedings.337 However, when the procedural obligation is a requirement for an official effective investigation thereby, as already explained, also comprising the ensuing criminal proceedings, then the procedure must be instituted from the moment when the domestic authorities, by any means whatsoever, learn about the death or ill-treatment of an individual. This could correlate to two instances: (1) the submission of an official complaint; or (2) in the absence of such a complaint, whenever there are other sufficiently clear indications that an infringement of the echr rights might have occurred.338 The submission of an official complaint must be associated with a credible assertion or an arguable claim of ill-treatment,339 or allegations of deprivation of life in suspicious circumstances.340 It is irrelevant in what form such a complaint or allegations have been made or which domestic authority they have

336 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, para. 156. 337 ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, paras. 64–69. 338 ECtHR (Judgment) Members of the Gldani Congregation of Jehovah’s Witnesses and O ­ thers v. Georgia, no. 71156/01, 3 May 2007, para. 97; ECtHR (Judgment) Hassan v. the United K ­ ingdom [gc], no. 29750/09, 16 September 2014, para. 62. 339 ECtHR (Judgment) Assenov and Others v. Bulgaria, no. 24760/94, 28 October 1998, para. 102; ECtHR (Judgment) Labita v. Italy [gc], no. 26772/95, 6 April 2000, para. 131; ECtHR (Judgment) Dimitar Shopov v. Bulgaria, no. 17253/07, 16 April 2013, para. 47. No “arguable claim” or “credible assertion” capable of giving rise to the obligation of an effective investigation was found, for example, in the instances of inconsistent and vague allegations of ill-treatment unsupported by any evidence whatsoever (ECtHR (Decision) Igars v. Latvia, no. 11682/03, 5 February 2013, para. 72; ECtHR (Judgment) Gavula v. Ukraine, no. 52652/07, 16 May 2013, para. 59; ECtHR (Judgment) Kushnir v. Ukraine, no. 42184/09, 11 December 2014, para. 103–107; see further: ECtHR (Judgment) Hassan v. the United Kingdom [gc], no. 29750/09, 16 September 2014, para. 63). 340 ECtHR (Judgment) Sabuktekin v. Turkey, no. 27243/95, 19 March 2002, para. 98.

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been submitted to. The obligation to conduct an official investigation under Article 3 ordinarily arises based on an official criminal complaint lodged with the prosecuting authorities;341 which was also considered to be done when a complaint of ill-treatment was made during the trial in the presence of a prosecuting officer;342 or upon a complaint by a third party revealing ill-treatment of the victim.343 It also arises based on a complaint made before an investigating judge at the initial hearing;344 or upon a complaint made before the trial court or the appeal court;345 or a complaint made during proceedings before the Constitutional Court;346 as well as a complaint lodged with the prison authorities;347 or, indeed, upon a complaint transmitted through the cpt;348 or the office of the president of the country.349 The ECtHR constantly emphasises that the authorities must be aware of the fact that those subjected to serious ill-treatment will, due to their vulnerability, often be less ready or willing to make a formal complaint.350 Moreover, in the instances of alleged ill-treatment in detention, the authorities should be aware that persons in detention may be vulnerable to pressure and thus a decision not to investigate or prosecute cannot be based on the mere retraction by the victim of his or her complaint of ill-treatment.351 Accordingly, the procedural obligation under Article 3 will also arise whenever the alleged ill-treatment has been brought to the attention of the authorities, irrespective of the existence of an official complaint.352 341 ECtHR (Judgment) Bati and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, para.  139; ECtHR (Judgment) Habimi and Others v. Serbia, no. 19072/08, 3 June 2014, para. 76. 342 ECtHR (Judgment) Grimailovs v. Latvia, no. 6087/03, 25 June 2013, para. 118. 343 ECtHR (Judgment) O’Keeffe v. Ireland [gc], no. 35810/09, 28 January 2014, para. 173. 344 ECtHR (Judgment) Labita v. Italy [gc], no. 26772/95, 6 April 2000, para. 132. 345 ECtHR (Judgment) Hajnal v. Serbia, no. 36937/06, 19 June 2012, para. 99. 346 ECtHR (Judgment) Mađer v. Croatia, no. 56185/07, 21 June 2011, para. 114. 347 ECtHR (Judgment) Ipate v. Moldova, no. 23750/07, 21 June 2011, para. 60; ECtHR ­( Judgment) Dzhabbarov v. Russia, no. 29926/08, 19 February 2015, para. 52. 348 ECtHR (Judgment) Valeriu and Nicolae Rosca v. Moldova, no. 41704/02, 20 October 2009, para. 66. 349 ECtHR (Decision) Filip v. Romania, no. 41124/02, 8 December 2005. 350 ECtHR (Judgment) Aksoy v. Turkey, no. 21987/93, 18 December 1996, paras. 97–98; E ­ CtHR (Judgment) Bati and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, para. 133; ECtHR (Judgment) Pădureţ v. Moldova, no. 33134/03, 5 January 2010, para. 62; ECtHR (Judgment) Buzilo v. Moldova, no. 52643/07, 21 February 2012, para. 29; ECtHR (Judgment) Bulgaru v. the Republic of Moldova, no. 35840/09, 30 September 2014, para. 17. 351 ECtHR (Judgment) Sergey Savenko v. Ukraine, no. 59731/09, 24 October 2013, para. 29. 352 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 186; ECtHR (Judgment) O’Keeffe v. Ireland [gc],

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The obligation to investigate and prosecute the allegations of ill-treatment arises, for instance, if certain facts to that effect have been revealed during the trial;353 or they follow from a medical examination of the victim carried out during his or her remand in custody;354 or are implied in the victim’s statements made during the criminal proceedings against him or her;355 or based on the fact that that the civil proceedings were instituted against the Ministry of the Interior on allegations of police ill-treatment;356 or when the allegations of ill-treatment arise upon the examination of evidence during civil proceedings for damages related to the alleged ill-treatment;357 or from other circumstances in which the domestic authorities have learned about the violent attack against an individual,358 such as through wide publicity given to the case.359 The obligation to institute ex officio proceedings is even stricter with regard to deprivations of life or any other suspicious death warranting an official investigation and prosecution under Article 2. This is not confined only to deaths caused at the hands of state authorities nor is it decisive whether the victim’s next-of-kin have lodged a formal complaint about the killing with the relevant investigative authority. In any such case, “the mere knowledge of the killing on the part of the authorities [gives] rise ipso facto to an obligation under Article 2 to carry out an effective investigation into the circumstances surrounding the death.”360 Indeed, this principle was applied in various contextual circumstances, such as suspicious killings indicating the involvement of state agents;361 or attempted killing under similar circumstances;362 or disappearance in life-threatening circumstances;363 353 354 355 356 357 358 359 360 361 362 363

no. 35810/09, 28 January 2014, para. 173; ECtHR (Judgment) Begheluri v. Georgia, no. 28490/02, 7 October 2014, para. 132. ECtHR (Judgment) Stanimirović v. Serbia, no. 26088/06, 18 October 2011, para. 41. ECtHR (Judgment) Pădureţ v. Moldova, no. 33134/03, 5 January 2010, paras. 63–64. ECtHR (Judgment) J.L. v. Latvia, no. 23893/06, 17 April 2012, paras. 11–13 and 73. ECtHR (Judgment) Tahirova v. Azerbaijan, no. 47137/07, 3 October 2013, paras. 54–61. ECtHR (Judgment) Muradova v. Azerbaijan, no. 22684/05, 2 April 2009, para. 123. ECtHR (Judgment) Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007, paras. 113–117. ECtHR (Judgment) Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014, para. 485. ECtHR (Judgment) Ergi v. Turkey, no. 23818/94, 28 July 1998, para. 82; ECtHR (Judgment) Slimani v. France, no. 57671/00, 27 July 2004, para. 47. Ibid., paras. 82–85; ECtHR (Judgment) Salman v. Turkey [gc], no. 21986/93, 27 June 2000, paras. 104–105. ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, paras. 98–100. ECtHR (Judgment) Nesibe Haran v. Turkey, no. 28299/95, 6 October 2005, paras. 70–74.

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kidnapping under such conditions,364 irrespective of the authority to which a complaint has been made;365 deaths in custody;366 other suspicions deaths at the hands of state authorities;367 but also work-related accidents;368 suicides;369 road accidents in suspicious circumstances;370 and other road accidents involving state agents.371 2.3.3 Requirements of Independence and Impartiality One of the implied aspects of effectiveness of the procedural obligation is its independence. In general, it is a requirement that all those responsible for, and carrying out, the investigation into life-threatening circumstances or ill-­ treatment must be independent and impartial with regard to those implicated in the events. Such independence and impartiality must exist in law and practice and must encompass: (1) lack of hierarchical or institutional connection with those implicated in the events; and (2) practical independence of the persons responsible for, and carrying out, the investigation.372 The former aspect could be determined as statutory or institutional independence while the latter essentially denotes de facto independence. Although these are two distinct requirements, they are nevertheless conceptually interrelated and in principle require a comprehensive assessment.373 The problem of independence ordinarily arises when an investigation is conducted by the same police unit that a police officer implicated in the circumstances of a killing or ill-treatment belongs to.374 The concerns in that respect essentially follow from the same organisational and hierarchical subordination of those investigating the offence and those implicated in it.375 364 ECtHR (Judgment) Nasukhanova and Others v. Russia, no. 5285/04, 18 December 2008, para. 112. 365 ECtHR (Judgment) Idalova and Idalov v. Russia, no. 41515/04, 5 February 2009, para. 108. 366 ECtHR (Judgment) Khambulatova v. Russia, no. 33488/04, 3 March 2011, para. 92. 367 ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para 74. 368 ECtHR (Judgment) Pereira Henriques v. Luxembourg, no. 60255/00, 9 May 2006, para. 56; ECtHR (Judgment) Gina Ionescu v. Romania, no. 15318/09, 11 December 2012, para. 37. 369 ECtHR (Judgment) Iorga v. Moldova, no. 12219/05, 23 March 2010, para. 26; ECtHR (Judgment) Vasîlca v. the Republic of Moldova, no. 69527/10, 11 February 2014, para. 28. 370 ECtHR (Decision) Al-Fayed v. France, no. 38501/02, 27 September 2007, paras. 73–75. 371 ECtHR (Judgment) Voiculescu v. Romania, no. 5325/03, 3 February 2009, para. 30. 372 ECtHR (Judgment) Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, para. 193. 373 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, paras. 224 and 237. 374 ECtHR (Judgment) Rehbock v. Slovenia, no. 29462/95, 28 November 2000, para. 74. 375 ECtHR (Judgment) Matko v. Slovenia, no. 43393/98, 2 November 2006, para. 89.

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Examples include the Ramsahai and Others v. the Netherlands case where the problem arose with regard to the fact that the killing implicating two police officers was initially investigated by the same police department to which the police officers belonged;376 which also gave rise to the finding of ineffectiveness of an investigation with regard to alleged ill-treatment during the arrest in Matko v. Slovenia and Rehbock v. Slovenia.377 Similarly, a problem of independence arose in Aktaş v. Turkey where the investigation was carried out by an intelligence officer attached to the same gendarmerie unit where the victim had died in suspicious circumstances;378 or in Scavuzzo-Hager and Others v. Switzerland where the same police officers who had been in charge of arresting a person, who later died in suspicious circumstances, conducted the initial investigative actions.379 The problem of independence with regard to the offences implicating police officers arises even when the investigation is conducted by different entities, hierarchically independent of each other but forming an integral part of the same police administration subordinated to the same director. Specifically, in the case of Eremiášová and Pechová v. the Czech Republic the investigation into the alleged suicide during the police remand was conducted by different police entities which were locally in the same subordinate position and furthermore reported to the same head of police at the state level. That was sufficient for the ECtHR to conclude that “neither of the investigating entities presented an appearance of independence or sufficient guarantees against pressure of hierarchical superiors.”380 In certain instances, the lack of independence may also follow from structural deficiencies where a criminal justice system has no means for addressing a possible conflict of interest related to the personal relationship of the victim with those implicated in the killing and the subsequent investigation. This was the case in Kolevi v. Bulgaria where there was sufficient evidence disclosing a serious conflict of interest between the victim, an assassinated former high-ranking prosecutor, and the Chief Public Prosecutor and other high-ranking public prosecution officials. The ECtHR in particular observed that for a certain period of time it was legally impossible to bring criminal 376 ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, paras. 326–335–337. 377 ECtHR (Judgment) Matko v. Slovenia, no. 43393/98, 2 November 2006, para. 89; ECtHR (Judgment) Rehbock v. Slovenia, no. 29462/95, 28 November 2000, para. 74. 378 ECtHR (Judgment) Aktaş v. Turkey, no. 24351/94, 24 April 2003, para. 301. 379 ECtHR (Judgment) Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, 7 February 2006, paras. 81–82. 380 ECtHR (Judgment) Eremiášová and Pechová v. the Czech Republic, no. 23944/04, 16 February 2012, paras. 151–156.

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charges against the Chief Public Prosecutor without his consent. He could not be removed from office against his will even if he happened to commit the most serious crime, as his conviction was a prerequisite for the termination of his term of office, nor could he be temporarily suspended from duty. Afterwards, certain amendments were introduced in the relevant legislation, but as a result of the hierarchical structure of the prosecution system and its internal working methods no prosecutor would issue a decision bringing charges against the Chief Public Prosecutor. On the other hand, he and other high-ranking prosecutors had the power to set aside any such decision taken by a subordinate prosecutor or investigator. The problem was further exacerbated by the prosecutors’ exclusive power to bring criminal charges against offenders.381 The problem of independence of a similar structural nature already observed above in the context of different forms of inquiries has often occurred in Turkish cases where inquiries into the offences committed by members of the police and the military were conducted by administrative councils. The problem was in the fact that the administrative councils were chaired by governors or their deputies and were composed of local representatives of the executive, who were hierarchically dependent on the governor, i.e. an executive officer linked to those under investigation.382 Its effects could be observed, for instance, in Orhan v. Turkey where the commander of a gendarmerie station where the victims had been detained was appointed as adjudicator by the competent council, which eventually resulted in ineffective progress in the investigation.383 However, in Paul and Audrey Edwards v. the United Kingdom, concerning the allegations of the domestic authorities’ failure to prevent the killing of a person in custody by his cellmate, the ECtHR found no lack of independence of an inquiry set up by the prison service, the county council and the competent health authority. In particular, it observed that these bodies established the terms of reference, appointed the chairman and members of the panel as well as the solicitors who assisted the inquiry. Furthermore, the chairman was a senior member of the bar, with judicial experience, while the other members were eminent or experienced in the prison, police or medical fields. None of the members had any hierarchical link to the bodies implicated in the events, and they all, including the appointed solicitor, acted in an independent capacity.384 381 ECtHR (Judgment) Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, paras. 195–214. 382 See supra 4 2.3.1.2. 383 ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 342. 384 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, para. 80.

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As already observed above, the issue of independence also arises with regard to the position of a military prosecutor. In Barbu Anghelescu v. Romania the ECtHR observed that the problem of independence arose when the officers implicated in the offence and the military prosecutors formed part of the same military structure organised on the principle of hierarchical subordination, and when they shared the same official privileges and responsibilities.385 This was automatically applied in other cases where such a link existed, such as in Iorga and Others v. Romania, which concerned an investigation into the death of a person implicating prison staff, who organisationally formed part of the military.386 Nevertheless, in Mantog v. Romania the ECtHR explained that the question of independence of investigation should always be assessed in the circumstances of a particular case. In that particular case, the military prosecutor investigated a suicide of a police officer’s wife, which solely concerned his private capacity, and this did not give rise to a violation of the authorities’ procedural obligation.387 Conversely, in Emars v. Latvia, also concerning an alleged suicide of a police officer’s wife, the ECtHR held that “[w]here responsibility for a suspicious death appears to attach to a State agent, the Court considers that it would be illogical to find that the procedural aspect of Article 2 only precludes the local police force, direct colleagues of the agent concerned, from investigating the death where the agent was acting in the course of his or her duties, as opposed to acting in a private capacity.” A ­ ccordingly, due to the involvement in the investigation of the police d­ epartment where the police officer worked, the ECtHR found a breach of the requirement of independence, and consequently a violation of Article 2.388 Further, when the issue of a lack of independence arises with regard to the investigating body, the sole fact of supervision by another authority, however independent, cannot be held a sufficient safeguard for the independence of the investigation.389 Specifically, in McKerr v. the United Kingdom, Hugh Jordan v. the United Kingdom, Kelly and Others v. the United Kingdom and Shanaghan v. the United Kingdom the ECtHR held that when the investigation into killing by state agents was conducted in such a manner that there was a hierarchical link between the investigating officers and the officers subject to investigation, 385 386 387 388 389

ECtHR (Judgment) Barbu Anghelescu v. Romania, no. 46430/99, 5 October 2004, para. 67. ECtHR (Judgment) Iorga and Others v. Romania, no. 26246/05, 25 January 2011, para. 84. ECtHR (Judgment) Mantog v. Romania, no. 2893/02, 11 October 2007, para. 70. ECtHR (Judgment) Emars v. Latvia, no. 22412/08, 18 November 2014, paras. 88 and 94. CtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 337.

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that cannot be sufficiently compensated by the supervision by an independent monitoring authority.390 This is particularly true in instances in which the monitoring authority merely accepts the conclusions of the lower body in respect of which the misgivings about the independence arise. Examples include the case of Matko v. Slovenia where the public prosecutor based his findings concerning the victim’s allegations of ill-treatment during police arrest solely on the reports ­submitted by the police units in respect of whose independence certain doubts existed.391 The same considerations led the ECtHR to raise the issue of a lack of independence of the investigation in Gharibashvili v. Georgia392 and Mafalani v. Croatia.393 Lack of effectiveness of the investigation due to doubts as to its independence may also be raised by other practices of the domestic authorities without the existence of a formal hierarchical or institutional connection between those implicated in the events and those conducting the investigation. In Hugh Jordan v. the United Kingdom the ECtHR, after having found a lack of independence in the investigation process, considered that the lack of reasoning of the prosecutor’s decision in a controversial incident involving the use of lethal force was not conducive to public confidence, although the position of the prosecution service in itself did not raise any issue of independence.394 Similarly, in Nachova and Others v. Bulgaria the ECtHR has held that the practice of ignoring the relevant facts and obvious evidence by the investigating authorities casts serious doubts on the objectivity and impartiality of the investigating process.395 This also relates to other instances in which specific conduct of the investigative bodies indicates a lack of independence, such as in the case of a failure to carry out all requisite investigative measures,396

390 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 128; ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, para. 120; ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, para. 114; ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, para. 104. 391 ECtHR (Judgment) Matko v. Slovenia, no. 43393/98, 2 November 2006, paras. 89–90. 392 ECtHR (Judgment) Gharibashvili v. Georgia, no. 11830/03, 29 July 2008, para 73. 393 ECtHR (Judgment) Mafalani v. Croatia, no. 32325/13, 9 September 2015, paras. 102–103. 394 ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, para. 123. See also ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para 92. 395 ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, paras. 116–117. 396 ECtHR (Judgment) Sergey Shevchenko v. Ukraine, no. 32478/02, 4 April 2006, paras. 72–73.

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g­ iving ­excessive weight to the suspects’ statements,397 failure to pursue all relevant lines of inquiry,398 or disclosing excessive inertia.399 In this connection it should also be noted that although judicial involvement in a case, such as that of the investigation judge, raises no a priori doubt of independence400 there could be instances in which the judicial proceedings may lack independence and impartiality. This was the case in Bajić v. Croatia where the ECtHR found that the lack of independence of medical experts who gave evidence in a criminal trial concerning medical negligence raised the issue of independence and impartiality of the proceedings set up to elucidate the circumstances surrounding the death.401 The above doubts as to the lack of independence of an investigation should, however, not be understood as implying that the investigative process would be impeded by involving certain technical staff, who at the outset may not meet the echr requirements concerning their independence. In principle, their involvement would be acceptable in certain limited investigative actions of predominantly objective and technical nature. What is important, in any case, is that such measures do not compromise the independence and impartiality of the domestic investigation as such, which has to be examined against the overall circumstances of the case.402 Similarly, some practical arrangements in the conduct of the authorities cannot in themselves raise the issue of a lack of independence. In Jaloud v. the Netherlands the ECtHR rejected the possibility that the physical distance separating the domestic authorities involved in the investigation from those implicated in the events could raise the issue of a lack of independence of the investigation.403 2.3.4 Public Scrutiny of the Proceedings and Victim Participation Public scrutiny of the proceedings and victim participation are two closely interlinked questions in the assessment of effectiveness of the procedural

397 ECtHR (Judgment) Grimailovs v. Latvia, no. 6087/03, 25 June 2013, para. 114. 398 ECtHR (Judgment) Oğur v. Turkey [gc], no. 21594/93, 20 May 1999, paras. 90–91. 399 ECtHR (Judgment) Rupa v. Romania (no. 1), no. 58478/00, 16 December 2008, paras. 123–124. 400 ECtHR (Judgment) Trévalec v. Belgium, no. 30812/07, 14 June 2011, para. 95. 401 ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, paras. 91–102. 402 ECtHR (Judgment) Giuliani and Gaggio v. Italy [gc], no. 23458/02, 24 March 2011, paras. 321–325. See further: ECtHR (Judgment) Özpolat and Others v. Turkey, no. 23551/10, 27 October 2015, para. 88. 403 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 190.

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­obligation.404 The overall requirement of public scrutiny of the proceedings relates to two questions: (1) access of the public to the investigative process; and (2) effective victim participation. The latter can be further divided into its participative limb related to the requirement of securing the victim involvement in the investigative process, and a functional limb related to securing the mechanisms for challenging the public authorities’ decisions not to prosecute. In this part of the assessment of the procedural obligation under the echr, the focus is on questions related to the general access of the public to the investigative process and on the participative limb of victim involvement in the proceedings, whereas the functional limb of victim participation forms part of the analysis related to two models of review of the decision not to prosecute in contemporary criminal justice systems.405 2.3.4.1 Public Scrutiny of the Proceedings A sufficient degree of public scrutiny of the investigative process or its results is important for securing accountability in practice as well as in theory and maintaining public confidence in the authorities’ adherence to the rule of law, as well as preventing any appearance of collusion in or tolerance of unlawful acts.406 Similar to many other aspects of the procedural obligation, it serves the individual-based purpose of securing justice for the victims, and at the same time accommodates the general relevancy of rule-of-law considerations concerning questions of administration of criminal justice. What degree of public scrutiny of the proceedings can satisfy the procedural obligation may vary from case to case depending on the importance of the relevant issues for the general public and all the interests involved.407 Naturally, the same extent of public scrutiny will not be necessary, for instance, in the case of an investigation into terrorism-related unlawful secret renditions undermining in itself the democratic institutions of a country, and in the case of private violence involving physical conflict between two individuals. As a general rule, it cannot be said that the requirement of public scrutiny goes so far as to require all relevant proceedings to be public. The question is always whether there is a sufficient degree of public scrutiny in respect of the investigation or its results so as to secure the above cited individual-based 404 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 192. 405 See infra 7.2.3. 406 ECtHR (Judgment) Varnava and Others v. Turkey [gc], nos. 16064/90 et al., 18 September 2009, para. 191. 407 ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 140.

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and public-oriented considerations.408 In practice, this requirement relates to two procedural aspects: public nature of the proceedings, and access to the relevant documents. In connection with the public scrutiny of proceedings, in Paul and Audrey Edwards v. the United Kingdom the ECtHR indicated that the public nature of the proceedings or the results may satisfy the requirements of the procedural obligation provided that in the particular circumstances the degree of public scrutiny secures the accountability of the state agents in practice and theory. In Paul and Audrey Edwards, involving the killing of an individual in detention by his cellmate related to a series of failures by public bodies, the ECtHR held that the overall public interest in the case required its widest possible exposure. Accordingly, by holding the inquiry in private, irrespective of the fact that its results were made public, and by not providing sufficient possibility for the victims to participate in the proceedings, the domestic authorities failed to discharge their procedural obligation properly.409 However, in Ramsahai and Others v. the Netherlands, concerning the killing by police officers, the ECtHR observed that although the proceedings before the competent court of appeal were not public, the individuals concerned were able to participate in the investigation and court proceedings and were granted full access to the investigation file. Moreover, there was nothing to prevent them from publishing the decisions of the competent authorities to which they had full access. In these circumstances, there was no doubt that the state authorities had not attempted or managed to cover-up any information relevant to the circumstances of the victim’s death, and thus no issue arose from the perspective of the requirement of public scrutiny.410 In Gharibashvili v. Georgia, concerning allegations of ill-treatment by state officials, the ECtHR criticised the domestic courts for not holding a public hearing or not securing a transparent and adversarial written procedure when upholding the prosecutor’s decision to discontinue the investigation. In this connection, the ECtHR stressed that a public and adversarial judicial review had the benefit of providing a forum guaranteeing due process of law.411

408 ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 353. 409 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, paras. 82–84. 410 Ibid., para. 354. 411 ECtHR (Judgment) Gharibashvili v. Georgia, no. 11830/03, 29 July 2008, para. 74; see also: ECtHR (Decision) Douglas-Williams v. the United Kingdom, no. 56413/00, 8 January 2002.

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However, in Giuliani and Gaggio v. Italy, although it concerned more severe circumstances of a deprivation of life implicating state officials, the ECtHR held that the procedural obligation under Article 2 did not require the holding of public hearings. At the same time, it made an ambiguous assertion suggesting that when sufficient evidence rules out any criminal responsibility of the suspect, the proceedings could be discontinued at the preliminary investigation stage. This reasoning could be read as implying that there is nothing mandating further prosecution and public court hearings when the evidence suggests that the proceedings should be discontinued already at the preliminary investigation stage; or it could be read as implying that there should be no public hearing when proceedings are discontinued at the preliminary investigation stage. Assuming that this reasoning addressed the applicants’ complaints that a decision to discontinue the proceedings had deprived them of a public hearing and public scrutiny of the circumstances surrounding their relative’s death, it would appear that it primarily concerns a principle according to which not every investigation absolutely mandated prosecution and further court proceedings. That would also be compatible with Gharibashvili v. Georgia to which Giuliani and Gaggio makes no reference.412 In any case, the procedural obligation logically implies that if an investigation produces the relevant evidence sufficient and necessary to proceed with the case, “in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility.”413 In such instances, the question is rather whether public scrutiny of the proceedings was secured from the perspective of the relevant procedural requirements of a criminal trial. In that connection, it could be observed that in Bubbins v. the United Kingdom the question of public scrutiny arose with regard to the coroner’s decision in the inquest proceedings to grant anonymity to certain witnesses. Drawing from the relevant principles under Article 6 echr with regard to the question of witness anonymity, the ECtHR held that a diligent balancing of interests at stake before granting anonymity and the possibility to question the witnesses by the application of special appropriate techniques amounted to sufficient 412 ECtHR (Judgment) Giuliani and Gaggio v. Italy [gc], no. 23458/02, 24 March 2011, paras. 283–320. 413 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 134; ECtHR (Judgment) Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, para. 66.

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procedural guarantees securing public scrutiny. Having found that, the ECtHR also considered that no issue arose under the procedural obligation with regard to a reasonable exercise of discretion by the coroner in securing the questioning of some further witnesses.414 The further question implied in the requirement of public scrutiny of proceedings relates to the disclosure of documents and results of the investigation to those concerned. Similar to the above -observed general requirement of public scrutiny of proceedings, disclosure of documents will depend on the interest involved and the gravity of the human rights violation at stake. Nevertheless, full and absolute lack of access to the relevant information and documents will be in itself incompatible with the procedural obligation.415 Accordingly, the wide public interest and the gravity of human rights violations involved led the ECtHR to reproach the domestic authorities for not disclosing any results of the investigation into allegations of an unlawful secret rendition in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland. Specifically, although entering into an altogether dubious concept from the perspective of criminal procedure, the right to truth, the ECtHR stressed the importance of the public scrutiny of proceedings in securing an appearance of the public authorities’ adherence to the rule of law. In the cases at issue, only a vague disclosure of the terms of reference or the scope of the relevant proceedings, including the offences allegedly involved, led to a failure of the domestic authorities to comply with their procedural obligation.416 Conceptually more importantly, in Husayn (Abu Zubaydah) and Al Nashiri, the ECtHR stressed that even if there is a strong public interest in maintaining the secrecy of information, such as in cases involving the fight against terrorism, it is essential that as much information as possible about allegations and evidence should be disclosed to the parties in the proceedings without compromising national security. If full disclosure is not possible, the difficulties so caused should be counterbalanced in a manner securing effective participation of the party concerned in defending his or her interests.417 The requisite access to the documents and information in the proceedings to those concerned should not necessarily be provided from the very 414 ECtHR (Judgment) Bubbins v. the United Kingdom, no. 50196/99, 17 March 2005, paras. 155–160. 415 ECtHR (Judgment) Oğur v. Turkey [gc], no. 21594/93, 20 May 1999, para. 92; ECtHR ­( Judgment) Giuliani and Gaggio v. Italy [gc], no. 23458/02, 24 March 2011, para. 303. 416 ECtHR (Judgment) Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014, paras. 488– 492; ECtHR (Judgment) Al Nashiri v. Poland, no. 28761/11, 24 July 2014, paras. 495–498. 417 ECtHR (Judgment) Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014, para. 488; ECtHR (Judgment) Al Nashiri v. Poland, no. 28761/11, 24 July 2014, para. 494.

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­beginning of the investigation as it may involve sensitive issues and create possible prejudicial effects to private individuals or other investigations. It could therefore be provided at other stages of the proceedings.418 However, an issue in the Northern Irish cases arose with regard to the lack of access of the victims’ next-of-kin to the relevant documents, in particular copies of any witness statements while the witness concerned was giving evidence. That hampered not only their effective participation in the proceedings but also impeded the normal progress of the case.419 This is particularly relevant with regard to the decisions of the domestic authorities that are conducive to the progress of the case. In Finucane v. the United Kingdom, the ECtHR found it incompatible with the procedural obligation that no reasons were provided for the various decisions not to prosecute and no information was made available to those concerned.420 On the other hand, when the victim was provided with sufficient information about the progress of the case and given sufficient opportunity to request further investigative measures, no issue arose under the procedural obligation.421 The requirement of public scrutiny of proceedings may be infringed not only by the full restriction of access to documents and information but also by belated information about the progress of the case and by providing merely formal succinct information to those concerned.422 Similarly, an issue under the procedural obligation will arise when the relevant domestic law does not envisage any appropriate procedure for granting access to the documents at the pre-trial stage of the proceedings.423 2.3.4.2 Victim Participation The question of victim participation is ordinarily inextricably linked with the assessment of public scrutiny of the proceedings, with which it generally forms a single factor in determining the question of effectiveness of the procedural 418 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 129. 419 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, paras. 147–151; ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, paras. 133–135; ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, paras. 127–128; ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, paras. 116–117. 420 ECtHR (Judgment) Finucane v. the United Kingdom, no. 29178/95, 1 July 2003, para. 83. 421 ECtHR (Judgment) Huohvanainen v. Finland, no. 57389/00, 13 March 2007, para. 114. 422 ECtHR (Judgment) Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, 17 January 2013, paras. 289–294. 423 ECtHR (Judgment) Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, 24 June 2010, paras. 71–75.

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obligation. In other words, an investigation cannot be described as effective unless, amongst other things, the victim is involved in the procedure to the extent necessary to safeguard his or her legitimate interests.424 It follows from this principle and from the general requirement of effectiveness that as soon as there is an obligation to institute an official effective investigation under the echr, the victim should have the possibility to be involved in the relevant procedures. For instance, a violation of the procedural obligation under Article 2 was found in Slimani v. France due to the fact that the victim could not have participated in an investigation into the cause of death of her partner without having lodged a formal criminal complaint beforehand.425 The requirement of victim participation still leaves a wide margin of assessment to the domestic authorities when deciding which procedural decision to take or which course of action to follow. Specifically, it cannot be said that the procedural obligation under the echr imposes a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a victim in the course of the investigation.426 As long as the victim is able to participate in the proceedings to the extent which is necessary to protect his or her interests and to exercise his or her rights, an issue under the procedural obligation should not arise.427 In Giuliani and Gaggio v. Italy the ECtHR observed the features of the domestic criminal justice system allowing the injured party at the stage of the preliminary investigation to request the public prosecutor to apply to the investigating judge for the immediate production of evidence, as well as the right to appoint a legal representative and to submit pleadings. Having used those opportunities by appointing experts of their own choosing, whom they had instructed to prepare expert reports which were submitted to the prosecuting authorities and the investigating judge, the victims effectively participated in the proceedings. Moreover, they were given an opportunity to request the taking of further investigative actions. Although this request was denied by the investigating judge, it did not disclose any arbitrariness. Similarly, although there were certain omissions in allowing the victims to take the appropriate measures with regard to the autopsy, the ECtHR did not find them sufficiently ­serious in themselves to call into question the domestic authorities’ compliance with their procedural obligation.428 424 425 426 427

ECtHR (Judgment) Slimani v. France, no. 57671/00, 27 July 2004, para. 47. Ibid., para. 48. ECtHR (Judgment) Giuliani and Gaggio v. Italy [gc], no. 23458/02, 24 March 2011, para. 304. ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 256. 428 Ibid., paras. 311–319.

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Furthermore, in Šeremet v. Bosnia and Herzegovina, Montenegro and Serbia and Zuban and Hamidović v. Bosnia and Herzegovina, for instance, the ECtHR held that the right of victims to participate effectively in the proceedings could not unjustifiably encroach on the rights of others potentially involved in the offence. In particular, it cannot be automatically required that the victims be provided with the names of the potential suspects against whom insufficient evidence has been gathered for prosecution, as it could have potentially unpleasant repercussions for these third parties. Moreover, as long as the victims are provided with the relevant information, the requirement of public scrutiny and victim participation could be satisfied through press releases or group meetings rather than through individual meetings.429 On the other hand, this should be distinguished from the passivity of the authorities in applying the necessary measures consonant with the particular features of a victim participation in the criminal proceedings, such as the need for counselling and psychological support to a child victim of rape.430 This apparent flexibility which exists with regard to the purely participative aspect of the victim involvement in the proceedings does not exist with regard to what was previously determined as the functional limb of victim participation. In particular, whatever the circumstances, the domestic authorities must inform the victim of the existence of the proceedings, allowing the possibility for him or her to participate and to challenge the decision not to prosecute.431 No issue therefore arose with regard to the victim participation in Ramsahai and Others v. the Netherlands and Jaloud v. the Netherlands432 where these requirements had been met.433 Similarly, in Mustafa Tunç and Fecire Tunç v. Turkey no issue arose with regard to the victims’ participation given that that a full copy of a reasoned decision not to bring a prosecution had been provided to the victims, who were also given access to the case file and had the possibility of challenging that decision.434 However, when this was not the case and where the victim, although allowed to participate in the proceedings, was not properly informed of the progress of the investigation, the ECtHR excluded 429 ECtHR (Decision) Šeremet v. Bosnia and Herzegovina, Montenegro and Serbia, no. 29620/05, 8 July 2014, para. 36; ECtHR (Decision) Zuban and Hamidović v. Bosnia and Herzegovina, no. 7175/06 and 8710/06, 2 September 2014, para. 33. 430 ECtHR (Judgment) C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012, para. 82. 431 For a detail analysis of the “functional limb” of victim involvement see infra 7.2.3. 432 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 224. 433 ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, paras. 347–350. 434 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 213–216.

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the possibility of the existence of a practical opportunity to challenge acts or omissions of the investigating authorities which, among other things, led it to conclude that the domestic authorities had failed to comply with the procedural obligation.435 Furthermore, in this connection, for instance, in Perevedentsevy v. Russia the ECtHR observed that the failure of the domestic authorities to timely recognise the victims’ status in the proceedings deprived them of the possibility of intervening during the course of the investigation, to request the examination of evidence or witnesses, and in general to follow the course of the proceedings, which could not be cured by the victims’ belated involvement in the proceedings.436 Similarly, any decisions of the domestic authorities of an organisational nature in the course of the investigative process should not have the effect of preventing the victim from effectively participating in the proceedings. In Beksultanova v. Russia the involvement of the victim in the proceedings was hampered by the authorities’ choice not to open a separate criminal case ­concerning her son’s disappearance but to examine it in the context of the criminal proceedings against him.437 A comparable effect is created by the discontinuation of the proceedings in the framework of the pre-investigation inquiry in the Russian system, in which the victim’s procedural status prevents him or her from having any say or standing in the proceedings.438 2.3.5 Promptness and Reasonable Expedition of the Proceedings The requirement of promptness and reasonable expedition is implicit in the context of the procedural obligation. It denotes, in particular, the requirement of a prompt response by the authorities to a human rights offence, which is often vital in maintaining public confidence in the authorities’ adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.439 From the practical side, the passage of time inevitably erodes the amount and quality of evidence and, by producing an appearance of a lack 435 ECtHR (Judgment) Umarova and Others v. Russia, no. 25654/08, 31 July 2012, para. 94. See also ECtHR (Judgment) Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, para. 125. 436 ECtHR (Judgment) Perevedentsevy v. Russia, no. 39583/05, 24 April 2014, paras. 118–123. See further: ECtHR (Judgment) Mikayil Mammadov v. Azerbaijan, no. 4762/05, 17 December 2009, para. 132; ECtHR (Judgment) Aliyeva and Aliyev v. Azerbaijan, no. 35587/08, 31 July 2014, para. 79. 437 ECtHR (Judgment) Beksultanova v. Russia, no. 31564/07, 27 September 2011, para. 96. 438 ECtHR (Judgment) Lyapin v. Russia, no. 46956/09, 24 July 2014, para. 133. 439 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, para. 195.

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of diligence, casts doubt on the good faith of the investigative efforts. Moreover, the protected investigative proceedings unavoidably drag out the ordeal for the members of the family.440 This essentially applies in every possible situation, even where there may be obstacles or difficulties which prevent progress in an investigation.441 For instance, in Yaşa v. Turkey where the Government attempted to justify approximately five years of complete inactivity in the investigation into a life-­ threatening attack by relying on the fact that the investigation had been taking place in the context of the fight against terrorism, which required the authorities to conduct particular actions with the necessary caution, the E ­ CtHR accepted that this might have impeded the search for conclusive evidence in the domestic criminal proceedings. However, it could not relieve the authorities of their procedural obligation as otherwise that would exacerbate still further the climate of impunity and insecurity and thus create a vicious circle.442 Similarly, in Mahmut Kaya v. Turkey the ECtHR took cognisance of the difficulties facing the prosecuting authorities in the south-east Turkey at that time but stressed that the serious allegations of misconduct and infliction of unlawful harm implicating state officials required the competent authorities to respond to such allegations actively and with reasonable expedition.443 Furthermore, the exceptional circumstances of the conflict in Chechnya at the time did not relieve the Russian authorities of their obligation to comply with the requirement of promptness that could reasonably be expected and tolerated in such conditions. Specifically, in Bazorkina v. Russia the ECtHR reproached the domestic authorities for a delay of almost one and a half year in opening the investigation and for the subsequent inexplicable delays in the course of the investigation, in particular the fact that one of the central figures related to the events had been questioned only four years and four months after the events in question and three years after the investigation had opened.444 The same approach was, for example, applied in Isayeva v. Russia where the ECtHR denoted the period of seven months before a criminal investigation was opened into credible allegations of killings as a “considerable delay.”445 440 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, para. 86. 441 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 164. 442 ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, paras. 102–104. 443 ECtHR (Judgment) Mahmut Kaya v. Turkey, no. 22535/93, 28 March 2000, para. 107. 444 ECtHR (Judgment) Bazorkina v. Russia, no. 69481/01, 27 July 2006, para. 121. 445 ECtHR (Judgment) Isayeva v. Russia, no. 57950/00, 24 February 2005, paras. 215–217.

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Similarly, in the context of the Northern Irish conflict, for instance in Hugh Jordan v. the United Kingdom, the ECtHR observed that the inquest had opened more than twenty-five months after the death and was pending for more than eight years and four months after the events in issue. This was marked by significant delays and lack of diligence in the conduct of the proceedings, which, although to some extent attributable to the victims, could not be considered as compatible with the state authorities’ procedural obligation.446 The same principles were applicable with regard to the position of the United Kingdom as an occupying power in Iraq, where the ECtHR held that such exceptional and complex circumstances could not absolve the competent authorities from the procedural obligation under the echr and in particular from the requirement of promptness and reasonable expedition implicit in that obligation. In Al-Skeini and Others v. the United Kingdom the ECtHR observed that it took some nine months to reopen a flawed investigation and that a soldier implicated in the killing was questioned only after a long period of time.447 On the other hand, in Palić v. Bosnia and Herzegovina, which was later followed for instance in Šeremet v. Bosnia and Herzegovina, Montenegro and Serbia, the ECtHR took into account the particular circumstances of the conflict in Bosnia and Herzegovina and the post-war difficulties faced by the domestic authorities. It thus accepted that in about ten years after the end of the war the domestic legal system should have become capable of fully complying with the procedural obligation concerning serious violations of human rights. In these circumstances, having found no substantial period of inactivity of the domestic authorities within the relevant time, the ECtHR considered that an issue did not arise under the procedural obligation.448 In any case, these exceptional circumstances suggest that the state authorities’ failure to comply with the requirement of promptness and reasonable ­expedition could hardly be justified in ordinary circumstances concerning cases which could perhaps, from the perspective of an ordinary understanding, appear complex and demanding. It follows that, in any circumstances, in their compliance with the procedural obligations the authorities are required to: 446 ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, paras. 136–140. 447 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 173. 448 ECtHR (Judgment) Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011, para. 70; ECtHR (Decision) Šeremet v. Bosnia and Herzegovina, Montenegro and Serbia, no. 29620/05, 8 July 2014, para. 37.

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(1) institute the appropriate proceedings without any delay; (2) conduct the relevant actions at a reasonable pace; and (3) terminate the proceedings within a reasonable time. Failure to comply with the requirement of promptness and reasonable expedition can be assessed in the context of the relevant proceedings taken as a whole where it forms part of the overall analysis of (in)effectiveness.449 However, it is an element capable in itself of leading to a finding of a violation of the authorities’ compliance with the procedural obligation under the echr, irrespective of any other considerations such as the outcome of the p ­ roceedings.450 Indeed, it transpires from the ECtHR case-law in McCaughey and Others v. the United Kingdom and Collette and Michael Hemsworth v. the United Kingdom that the requirement of promptness and reasonable expedition can be detached from other aspects of effectiveness of the procedural obligation.451 On the other hand, the considerations bearing on the assessment of the requirement of promptness and reasonable expedition may be consumed under other aspects of effectiveness. This can be observed for instance in the case of Brecknell v. the United Kingdom where the ECtHR considered that certain apprehensions as to the slowness of the investigative process were consumed in the assessment of the lack of independence of the body conducting the investigation and that therefore no separate issue of ineffectiveness related to the requirement of promptness and reasonable expedition arose.452 Compliance with the requirement of promptness and reasonable expedition is determined by the circumstances of a particular case where no general rule-like regularity can be set out. The principles relevant to the length of proceedings, as an aspect of a fair trial under Article 6 echr, may to an extent serve as guidance in the assessment of the requirement of promptness and reasonable expedition implicit in the context of the procedural obligation.453 In particular, considerations such as the complexity of the case and the conduct of the parties bear relevance in the overall assessment of compliance with the time-requirement of the procedural obligation.454 449 See further: ECtHR (Judgment) Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, 17 January 2013, paras. 283–288. 450 ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, para. 56. 451 ECtHR (Judgment) McCaughey and Others v. the United Kingdom, no. 43098/09, 16 July 2013, paras. 121 and 140; ECtHR (Judgment) Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013, paras. 60 and 74. 452 ECtHR (Judgment) Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, para. 78. 453 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 155. 454 ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, para. 105.

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However, unlike the same requirement implied in the context of a fair trial, the requisite expedition of the proceedings, conceived under the procedural obligation, is an obligation exclusively imposed on the competent authorities. This is because it is not merely the length of the proceedings which is at issue, but the question whether in the circumstances of the case seen as a whole the state could be said to have complied with its procedural requirements. Thus, for instance, unlike under Article 6 echr, the fact that the victim did not use the domestic length-of-proceedings remedies cannot be held against him or her when assessing the state authorities’ compliance with the requirement of promptness and reasonable expedition under the procedural obligation.455 In view of this particular nature of the requirement of promptness and reasonable expedition, the assessment of the authorities’ diligence in the institution of the proceedings, the conduct of the relevant procedural actions, and the termination of the proceedings within a reasonable time, could be made only on a case-by-case basis. In this connection, for instance, the eight-year delay in the institution of the proceedings after the killing by state agents had occurred was considered inacceptable,456 as was a delay of six years;457 or four and a half years458 after the events. The ECtHR also reproached the domestic authorities for a delay of more than twenty days in taking the first action;459 or when the first on-site inspection of the crime scene was made almost seven years after the incident;460 as well as when the investigating officer waited for more than a year before commissioning an expert report;461 or when the crucial action was taken half a year after the discovery of the body;462 as well as when the competent prosecutor waited for six months before starting to work on the case;463 and in the case of one year and six months of complete inactivity in the investigation and then 455 ECtHR (Judgment) Šilih v. Slovenia [gc], no. 71463/01, 9 April 2009, paras. 169–170; ECtHR (Judgment) Asllani v. the former Yugoslav Republic of Macedonia, no. 24058/13, 10 December 2015, para. 63. 456 ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, para. 130. 457 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 154; ECtHR (Judgment) McShane v. the United Kingdom, no. 43290/98, 28 May 2002, para. 124. 458 ECtHR (Judgment) Shanaghan v. the United Kingdom, no. 37715/97, 4 May 2001, para. 119. 459 ECtHR (Judgment) Denis Vasilyev v. Russia, no. 32704/04, 17 December 2009, para. 101. 460 ECtHR (Judgment) Menteşe and Others v. Turkey, no. 36217/97, 18 January 2005, para. 54. 461 ECtHR (Judgment) Kişmir v. Turkey, no. 27306/95, 31 May 2005, para. 116. 462 ECtHR (Judgment) Iorga v. Moldova, no. 12219/05, 23 March 2010, para. 34. 463 ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, para. 114.

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additional one year and three months which the prosecutor took to lodge an indictment before the competent court.464 Further, it was not considered that the relevant procedural actions proceeded with a reasonable pace when there were numerous adjournments of the proceedings due to the need to obtain further documents;465 or when thirty hearings in the course of a criminal trial were adjourned over a period of more than four years;466 as well as when the investigation was adjourned and resumed eight times over a period of almost three years467 or almost six years;468 or when it was adjourned and reopened six times over a period of almost five years.469 Similarly, complete inactivity on the part of the police over a period of six years is also incompatible with the requirement of reasonable progress in the proceedings;470 or when the case file containing the relevant documents was transferred to the competent authority only nine months after the incident.471 It was also not considered that the overall length of proceedings complied with the procedural obligation when, eight years after the events, the proceedings were still pending before the competent court;472 or more than ten years before the prosecutor;473 or when the total length of criminal procedure, including the court proceedings, exceeded six years;474 as well as when the ­criminal proceedings lasted a total of five years after the alleged ill-­treatment had occurred;475 or a total of fifteen years in a case concerning medical 464 ECtHR (Judgment) Çelik and İmret v. Turkey, no. 44093/98, 26 October 2004, paras. 58–59. See also ECtHR (Judgment) Abdülsamet Yaman v. Turkey, no. 32446/96, 2 November 2004, paras. 57–60. 465 ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, paras. 130–133; ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 152. 466 ECtHR (Judgment) Bati and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, para. 145. 467 ECtHR (Judgment) Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005, para. 164. 468 ECtHR (Judgment) Luluyev and Others v. Russia, no. 69480/01, 9 November 2006, para. 99. 469 ECtHR (Judgment) Bazorkina v. Russia, no. 69481/01, 27 July 2006, para. 124. 470 ECtHR (Judgment) Šečić v. Croatia, no. 40116/02, 31 May 2007, para. 58. 471 ECtHR (Judgment) Buldan v. Turkey, no. 28298/95, 20 April 2004, para. 89. 472 ECtHR (Judgment) Bati and Others v. Turkey, nos. 33097/96 and 57834/00, 3 June 2004, para. 145; ECtHR (Judgment) Şirin Yılmaz v. Turkey, no. 35875/97, 29 July 2004, para. 84. 473 ECtHR (Judgment) Menteşe and Others v. Turkey, no. 36217/97, 18 January 2005, para. 55. 474 ECtHR (Judgment) Ağdaş v. Turkey, no. 34592/97, 27 July 2004, para. 103. 475 ECtHR (Judgment) Çelik and İmret v. Turkey, no. 44093/98, 26 October 2004, para. 58.

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­negligence;476 or more than eight years concerning the same issue;477 as well as when only the investigation lasted for almost five years.478 On the other hand, it was considered that the overall length of proceedings involving a death in detention was not excessive when the proceedings terminated about three and a half years after the death.479 2.3.6

Procedural Thoroughness: Adequacy or Effectiveness in the Narrow Sense There are numerous factors capable of determining the state authorities’ compliance with the requirement of thoroughness implicit in the context of the procedural obligation. In general, it could be said that any of the elements, other than those observed above under other aspects of the procedural obligation, suggesting an intention on the part of the authorities to conduct a serious investigation into and prosecution of a human rights offence could be conceived under the head of thoroughness. This requirement could be therefore also determined as adequacy of the procedural response or effectiveness in the narrow sense. In other words, as noted by the ECtHR, adequacy refers to the capacity of the authorities’ procedural response to establish the facts and, where appropriate, identify and punish those responsible.480 Similar to some other aspects of effectiveness of the procedural obligation, such as promptness and reasonable expedition, compliance with the requirement of thoroughness is essentially determined by the circumstances of a particular case.481 It should nevertheless be remembered that the procedural obligation is a requirement of means and not of results.482 This should be read as implying that as long as the authorities have deployed their utmost efforts in the investigation and prosecution of those responsible, the inherent ­procedural difficulties or failures, such as those related to the limited 476 ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, para. 105. 477 ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, para. 68. 478 ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, para. 114. 479 ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, para. 85. 480 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 172; ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 233; ECtHR (Judgment) Jeronovičs v. Latvia [gc], no. 44898/10, 5 July 2016, para. 103. 481 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 234. 482 ECtHR (Judgment) Dimitar Shopov v. Bulgaria, no. 17253/07, 16 April 2013, para. 48.

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e­ pistemological capacities, cannot be held against them. In the context of the investigative efforts, this means that the procedural obligation “does not go so far as imposing a requirement that a State must necessarily succeed in locating and prosecuting the perpetrators” of the offence,483 just as in the context of the court proceedings it does not mean that all prosecutions must result in a conviction, or indeed in a particular sentence.484 At the same time, however, the state authorities should not under any circumstances be prepared to allow human rights offences to go unpunished as that would undermine public confidence and the rule of law and create an appearance of tolerance of or collusion in unlawful acts.485 Accordingly, the principle under which the procedural obligation is a requirement of means and not of results essentially means that “there is no ­absolute right to obtain the prosecution or conviction of any particular person where there were no culpable failures in seeking to hold perpetrators of criminal offences accountable.”486 In this definition the elements of absolute, related to the right to obtain the prosecution or conviction of a particular person, and culpable failures, related to the procedure seeking to hold perpetrators of criminal offences accountable, arguably qualify the assertion that the procedural obligation is a requirement of means and not of results. Consequently, the assessment of thoroughness or effectiveness of the procedural obligation operates as a balancing of the reasonable means employed and the results legitimately expected to be achieved. This balancing of means and results in the context of the procedural obligation can be structurally observed from the perspective of the investigation and court proceedings separately, bearing in mind that in some instance such a clear-cut distinction cannot be made. 2.3.6.1 Thoroughness of the Investigation Not all failures or flaws in the investigation lead to the conclusion that the investigation process failed to meet the requirement of thoroughness. This requirement could be logically qualified and quantified by considering whether, had it not been for those flaws, a reasonable expectation of further investigation and prosecution would persist.487 483 484 485 486

ECtHR (Judgment) Nuray Sen v. Turkey (No. 2), no. 25354/94, 30 March 2004, para. 175. ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, para. 96. Loc. cit. ECtHR (Judgment) Söderman v. Sweden [gc], no. 5786/08, 12 November 2013, para. 83 (emphasis added). 487 ECtHR (Decision) Grams v. Germany, no. 33677/96, 5 October 1999.

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Against this test, in Grams v. Germany, concerning the death of a terrorist suspect in the course of a police operation, the ECtHR observed that, beyond mere speculation, the central difficulty in progressing with the investigation was in the fact of the absence of any eyewitnesses to the events, which was a flaw not attributable to the investigation itself. The domestic authorities’ decision not to continue with the prosecution of the suspected police officers therefore appeared logical and within the margin of a reasonable decision.488 Similarly, in the case of a suspicious death in Mustafa Tunç and Fecire Tunç v. Turkey the ECtHR considered that the fact that the weapon presumably used for the killing (suicide) had not been dusted for fingerprints, although such testing should be considered as standard procedure, had been a shortcoming but not of a decisive impact given that, in the circumstances where the possible suspect had admitted touching the weapon of the victim after he had found the victim with an arguably self-inflicted gunshot, it would not have had any important implications.489 The lack of thoroughness of the investigation relates to the particular features of a specific model of investigation. In J.L. v. Latvia, for instance, concerning allegations of ill-treatment of an individual in detention by his fellow inmates, the ECtHR observed a lack of sufficient coordination among the investigating authorities.490 On the other hand, in the Northern Irish cases, the thoroughness of the coroner’s inquest was undermined by the extensive use of the public interest immunity certificates, allowing certain issues of public interest not to be disclosed, which had the effect of preventing the inquest from examining matters relevant to the outstanding issues in those cases; and/ or by the possibility for the state agents implicated in the events not to attend the inquest as witnesses,491 and sometimes by the limited scope of the inquest itself.492 Indeed, the scope of an investigation limited by the domestic substantive requirements in variance with the echr standards in itself raises an issue of thoroughness of the investigation. This was the case, for example, in Mihaylova and Malinova v. Bulgaria where the legislation on the use of force 488 Ibid. 489 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 195. 490 ECtHR (Judgment) J.L. v. Latvia, no. 23893/06, 17 April 2012, para. 87. 491 ECtHR (Judgment) McKerr v. the United Kingdom, no. 28883/95, 4 May 2001, para. 157; ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, para. 142; ECtHR (Judgment) Kelly and Others v. the United Kingdom, no. 30054/96, 4 May 2001, para. 136. See further: ECtHR (Judgment) Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, 14 March 2002, paras. 78–79. 492 ECtHR (Judgment) Finucane v. the United Kingdom, no. 29178/95, 1 July 2003, para. 78.

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by the police, which did not provide sufficient protection against unjustified and arbitrary encroachments on their right to life as required under the substantive aspect of Article 2, was a factor limiting the scope of the investigation mandated under the procedural limb of that provision.493 Further, in Avşar v. Turkey the issue of a lack of thoroughness of the investigation arose with regard to a manifest lack of diligence of the authorities to establish the identity of one of the persons allegedly implicated in the events.494 Similarly, in Beganović v. Croatia, concerning a case of private violence, the authorities, without a reasonable explanation, failed to prosecute several assailants clearly implicated in the events.495 Such omissions in prosecuting particular perpetrators of offences was in Jelić v. Croatia found to constitute a failure to follow the existing leads to establish the identity of individual perpetrators of the crimes, irrespective of the fact that the identity of superior officers might have been established and that they had been prosecuted and sentenced.496 However, the question of the existence of leads should be distinguished from mere rumours alleging the responsibility of a particular person. Such rumours would not be sufficient to create a domestic authorities’ obligation to prosecute the individual with regard to whom they circulate.497 This is particularly true in the context of the investigations into crimes committed in the circumstances of generalised violence, armed conflict or insurgency, where serious obstacles may be placed in the way of investigators and concrete constraints may compel the use of less effective measures of investigation.498 However, as already observed with regard to the requirement of promptness and reasonable expedition, the procedural obligation requires that even in difficult security conditions all reasonable steps be taken to ensure that an effective, independent investigation is conducted.499 A lack of thoroughness of the investigation may also relate to failures in establishing the identity of all those implicated in the events – suspects, witnesses and victims – and in securing their questioning. In Isayeva, Yusupova and 493 ECtHR (Judgment) Mihaylova and Malinova v. Bulgaria, no. 36613/08, 24 February 2015, paras. 59 and 64. 494 ECtHR (Judgment) Avşar v. Turkey, no. 25657/94, 10 July 2001, paras. 396–400. 495 ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, para. 80. 496 ECtHR (Judgment) Jelić v. Croatia, no. 57856/11, 12 June 2014, paras. 85 and 94. 497 ECtHR (Decision) Zuban and Hamidović v. Bosnia and Herzegovina, nos. 7175/06 and 8710/06, 2 September 2014, para. 32. 498 ECtHR (Judgment) Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011, paras. 64–71. 499 ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 164.

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Bazayeva v. Russia this related to the failure to establish the identity of those who were affected and could have had knowledge of the life-­threatening circumstances which occurred in the course of a wide-scale security ­operation.500 In Đurđević v. Croatia, concerning an instance of police violence, this related to the failure of the prosecutor to interview one of the victims and the eyewitnesses as well as the police officers involved in the events.501 Moreover, with regard to the state agents implicated in the events, in Jaloud v. the Netherlands the ECtHR reproached the domestic authorities for not securing their questioning so as to dispel any risk of collusion.502 In the circumstances, omissions related to witnesses may also appear as a failure in ascertaining the whereabouts of a witness503 or securing and organising confrontation with or of witnesses.504 This may also relate to the confrontation of the victim and those whom the victim had incriminated, as was the case in Gharibashvili v. Georgia505 and Gurgurov v. Moldova.506 ­However, in order to avert the fear of retaliation or intimidation the authorities are obliged, when necessary, to ensure that the victim can give his or her statement in the absence of those implicated in the events.507 Accordingly, for instance, in Habimi and Others v. Serbia where the victims had been heard on the premises of the penitentiary facility where they had been ill-treated, and where several had specifically stated that they had been afraid to identify their abusers while others had decided to withdraw their complaints, the ECtHR reproached the investigative authorities for not exploring these indications of official intimidation.508 Further, in Nafiye Çetin and Others v. Turkey the investigating authority did not properly question an eyewitness and an alleged victim of ill-treatment nor did it attempt to ask the witness to identify the alleged perpetrators by 500 ECtHR (Judgment) Isayeva, Yusupova and Bazayeva v. Russia, nos. 57947/00, 57948/00 and 57949/00, 24 February 2005, para. 224. 501 ECtHR (Judgment) Đurđević v. Croatia, no. 52442/09, 19 July 2011, para. 90. 502 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 207. 503 ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, para. 110. 504 ECtHR (Judgment) Tanış and Others v. Turkey, no. 65899/01, 2 August 2005, para. 187; and ECtHR (Judgment) Koky and Others v. Slovakia, no. 13624/03, 12 June 2012, para. 236. 505 ECtHR (Judgment) Gharibashvili v. Georgia, no. 11830/03, 29 July 2008, para 73. 506 ECtHR (Judgment) Grgurov v. Moldova, no. 7045/08, 16 June 2009, para. 69. 507 ECtHR (Judgment) Karabet and Others v. Ukraine, nos. 38906/07 and 52025/07, 17 January 2013, paras. 273 and 276. 508 ECtHR (Judgment) Habimi and Others v. Serbia, no. 19072/08, 3 June 2014, para. 81.

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­ sing photographs, an identification parade or the like.509 On the other hand, u in Enukidze and Girgvliani v. Georgia a violation of the procedural obligation related to the fact that, in addition to not questioning all relevant witnesses, the prosecutor distorted a record of the identification parade and a record of the witness statements.510 Similarly, in Vasil Hristov v. Bulgaria the ECtHR found a violation of the procedural obligation in relation to a failure to organise an identity parade or to question all eyewitnesses of an incident of private violence.511 Furthermore, in Rashid v. Bulgaria, Vachkovi v. Bulgaria and Dimov and O ­ thers v. Bulgaria the ECtHR rejected the possibility of exempting security officers belonging to a special police unit from their duty to give evidence in the criminal proceedings.512 And in Matko v. Slovenia and Isayev and Others v. Russia the investigating authorities never identified or questioned the police officers implicated in the events.513 At the same time, in Kmetty v. Hungary the ECtHR emphasised that the questioning of those implicated in the events was crucial as it allowed the victim to challenge the alleged perpetrators’ version of the events.514 Similarly, in Finogenov and Others v. Russia the investigative authorities did not identify and question all those who took part in the coordination of a complex anti-terrorist operation, which consequently impeded further course of the investigation.515 However, the questioning, as a mere procedural formality, of those implicated in the events will not be sufficient to satisfy the procedural obligation. In Virabyan v. Armenia the ECtHR observed that during their questioning the police officers implicated in the alleged ill-treatment of a suspect were simply asked to provide their account of events and no questions whatsoever were put to them. Even on a few occasions when the investigator did ask questions, 509 ECtHR (Judgment) Nafiye Çetin and Others v. Turkey, no. 19180/03, 7 April 2009, para. 39. See also ECtHR (Judgment) Volkan Özdemir v. Turkey, no. 29105/03, 20 October 2009, para. 44. 510 ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, paras. 253–255. 511 ECtHR (Judgment) Vasil Hristov v. Bulgaria, no. 81260/12, 16 June 2015, para. 41. 512 ECtHR (Judgment) Rashid v. Bulgaria, no. 47905/99, 18 January 2007, paras. 63–65; ­ECtHR (Judgment) Vachkovi v. Bulgaria, no. 2747/02, 8 July 2010, para. 83; ECtHR (Judgment) ­Dimov and Others v. Bulgaria, no. 30086/05, 6 November 2012, para. 84. 513 ECtHR (Judgment) Matko v. Slovenia, no. 43393/98, 2 November 2006, para. 92; ECtHR (Judgment) Isayev and Others v. Russia, no. 43368/04, 21 June 2011, para. 148. 514 ECtHR (Judgment) Kmetty v. Hungary, no. 57967/00, 16 December 2003, para. 42. 515 ECtHR (Judgment) Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, 20 December 2011, paras. 278 and 280.

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there were never more than one or two questions and in most cases the questions asked were of a standard nature and lacked specificity.516 In this connection, it should also be observed that an issue will arise if information obtained by the use of polygraph test is not further pursued through the appropriate interviews, which was the case in Tyagunova v. Russia concerning the allegations of rape.517 A lack of thoroughness of the investigation will ordinarily arise as an issue when the crime scene has not been correctly inspected and when the relevant evidence has not been collected, such as in Acar and Others v. Turkey where empty cartridges were not diligently collected from the scene of the incident,518 or in Ognyanova and Choban v. Bulgaria and Vachkovi v. Bulgaria where the crime scene was not preserved in its original state prior to its inspection.519 In view of these requirements, it is obvious that the absence of any on-site inspection raised an issue of thoroughness in D.J. v. Croatia, concerning the allegations of rape by a private party.520 Furthermore, in Yüksel Erdoğan and Others v. Turkey the crime scene was not photographed and no sketches or a plan of the place where the event took place were made521 and in Vladimir Fedorov v. Russia no meaningful steps to search the premises where the victim had allegedly been ill-treated were taken.522 Similarly, in Savitskyy v. Ukraine, concerning severe physical injuries related to alleged police beating of an individual, which were, according to the official police version of the events, a result of a fall due to the victim’s intoxication, the ECtHR observed that in accepting the version of the victim’s accidental fall the authorities were expected to show particular diligence in exploring the terrain and establishing the exact placement of his body. However, they had not established with sufficient precision where exactly the victim had been found by the police officers and had not explained the discrepancies in the measurements carried out at the scene.523

516 ECtHR (Judgment) Virabyan v. Armenia, no. 40094/05, 2 October 2012, para. 175. 517 ECtHR (Judgment) Tyagunova v. Russia, no. 19433/07, 31 July 2012, para. 71. 518 ECtHR (Judgment) Acar and Others v. Turkey, nos. 36088/97 and 38417/97, 24 May 2005, para. 88. 519 ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, para. 111; ECtHR (Judgment) Vachkovi v. Bulgaria, no. 2747/02, 8 July 2010, para. 91. 520 ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, para. 103. 521 ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 108. 522 ECtHR (Judgment) Vladimir Fedorov v. Russia, no. 19223/04, 30 July 2009, para. 74. 523 ECtHR (Judgment) Savitskyy v. Ukraine, no. 38773/05, 26 July 2012, para. 108.

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A further element in the assessment of the effectiveness of an investigation is the diligence in commissioning and obtaining autopsy reports or other evidence from the forensic experts. As a first rule, the autopsies should normally be performed as soon as possible following the death as the quality of autopsy results diminishes over time. Accordingly, in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania the ECtHR criticised the authorities’ failure to conduct an autopsy immediately following the death of the victim.524 Similarly, in Emars v. Latvia the four days during which the autopsy had not been performed following the death was also found to be in contravention of the authorities’ procedural obligation.525 In Anguelova v. Bulgaria the failures with regard to autopsy concerned the failure of the autopsy to record morphological data and the absence or presence of “contre-coup lesions” as well as the failure of the investigation authorities to pay sufficient attention to the other traces left on the victim’s body.526 Similarly, in Barabanshchikov v. Russia, concerning allegations of police illtreatment, the forensic expert failed to document the victim’s injuries properly and did not make any reference to the degree of support to the victim’s allegations of ill-treatment. Having observed that, the ECtHR stressed that it was extremely important that the doctor states the degree of consistency with the allegations of ill-treatment. A conclusion indicating the degree of support to the allegations of ill-treatment should be based on the assessment of possible differential diagnoses (non-ill-treatment-related injuries including selfinflicted injuries and diseases).527 In this connection, in Gurgurov v. Moldova the problem with the medical evidence arose due to a limited scope of the report commissioned from the competent experts.528 Similarly, in Yananer v. Turkey the failures related to cursory drafted medical reports without any indications of specific features of the physical injury,529 and in Premininy v. Russia the ECtHR questioned the validity of a medical expert report limited only to the analysis of the medical documentation without a direct examination of the victim.530 In Khashiyev and Akayeva v. Russia no autopsy was performed; instead, the local police officers described and photographed the bodies of the victims 524 ECtHR (Judgment) Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [gc], no. 47848/08, 17 July 2014, para. 146. 525 ECtHR (Judgment) Emars v. Latvia, no. 22412/08, 18 November 2014, para. 79. 526 ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 142. 527 ECtHR (Judgment) Barabanshchikov v. Russia, no. 36220/02, 8 January 2009, para. 59. 528 ECtHR (Judgment) Gurgurov v. Moldova, no. 7045/08, 16 June 2009, para. 66. 529 ECtHR (Judgment) Yananer v. Turkey, no. 6291/05, 16 July 2009, para. 41. 530 ECtHR (Judgment) Premininy v. Russia, no. 44973/04, 10 February 2011, para. 111.

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without removing the clothes from the bodies.531 In Jaloud v. the Netherlands the question also arose with regard to the qualifications of the pathologist performing the autopsy who notably failed to take some obvious measures such as taking photographs of the body.532 Similarly, a failure of the prosecuting authorities to properly address the absence of forensic photographs of the body and of a post-mortem X-ray of the victim’s thorax, the brevity of the forensic report and the large number of errors, omissions and incomplete descriptions contained therein, led to a finding of a violation of the procedural obligation in Carabulea v. Romania.533 Similarly, with regard to allegations of police ill-treatment in Nadrosov v. Russia, the ECtHR reproached the authorities for not commissioning an expert report or at least taking statements from the emergency and hospital doctors attending the victim.534 The same was done in Georgiy Bykov v. Russia where the ECtHR stressed that the mere existence of medical certificates which listed the injuries sustained by the victim was no substitute for a forensic medical examination.535 However, in Jannatov v. Azerbaijan the ECtHR clarified that the forensic medical report was only one of the means to secure the evidence during the examination of allegations of ill-treatment and that it should not affect the need for further evidence to be collected and the relevant circumstances elucidated.536 In view of these requirements, it goes without saying that in the case of a suspicious death a total absence of autopsy will run counter to the requisites of the procedural obligation.537 This is also true for the instances of ill-­treatment where proper medical examinations are an essential safeguard against such acts. Moreover, the forensic doctor must enjoy formal and de facto independence, be provided with specialised training and be allocated a mandate which is broad in scope.538 Accordingly, an issue of independence of medical experts and the consequent thoroughness of the investigation always arises if

531 ECtHR (Judgment) Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005, para. 163. See also ECtHR (Judgment) Estamirov and Others v. Russia, no. 60272/00, 12 October 2006, para. 91. 532 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, paras. 213–214. 533 ECtHR (Judgment) Carabulea v. Romania, no. 45661/99, 13 July 2010, paras. 135–138. 534 ECtHR (Judgment) Nadrosov v. Russia, no. 9297/02, 31 July 2008, para. 43. 535 ECtHR (Judgment) Georgiy Bykov v. Russia, no. 24271/03, 14 October 2010, para. 67. 536 ECtHR (Judgment) Jannatov v. Azerbaijan, no. 32132/07, 31 July 2014, para. 53. 537 ECtHR (Judgment) Isayev and Others v. Russia, no. 43368/04, 21 June 2011, para. 148. 538 ECtHR (Judgment) Vladimir Romanov v. Russia, no. 41461/02, 24 July 2008, para. 86.

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the victim of alleged police ill-treatment was examined in the presence of the police officers.539 The requirements concerning forensic evidence relate to some other, wider questions of the case which might be answered by commissioning an expert forensic report. For instance, the failures in the investigative process in D.J. v. Croatia, concerning the allegations of rape, related to the fact that the investigative authorities had never sent the skirt the victim was wearing on the critical occasion for forensic examination.540 Similarly, in Tyagunova v. Russia, also a rape case, the investigator had never sent the available dna material for a forensic analysis.541 Another element disclosing defects in the reliability and thoroughness of an investigation relates to failures concerning ballistic and other expert evidence. In Ağdaş v. Turkey this concerned defective and limited ballistic tests of the weapons and the wider circumstances of the shooting.542 In Ramsahai and Others v. the Netherlands this related to the failure to establish the trajectory of the fatal bullet;543 and in Şimşek and Others v. Turkey this concerned an inadequately drafted ballistic report which was moreover limited in scope.544 In Jaloud v. the Netherlands the failures concerning the ballistic evidence related to the omissions in properly storing and examining the bullet fragments.545 Similar to the duty to obtain the relevant forensic and expert evidence, the thoroughness of the investigation may also be measured by the diligence of the authorities in collecting the relevant documents during the investigation. For instance, in several Russian cases the lack of thoroughness of the investigation related to the failures in collecting documents to clarify all the relevant circumstances of the security operation.546 In Finogenov and Others v. Russia the issue of the absence of documents arose with regard to the formula of the 539 540 541 542 543

ECtHR (Judgment) Lopata v. Russia, no. 72250/01, 13 July 2010, para. 114. ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, para. 103. ECtHR (Judgment) Tyagunova v. Russia, no. 19433/07, 31 July 2012, para. 71. ECtHR (Judgment) Ağdaş v. Turkey, no. 34592/97, 27 July 2004, para. 101. ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 327. 544 ECtHR (Judgment) Şimşek and Others v. Turkey, nos. 35072/97 and 37194/97, 26 July 2005, para. 122. 545 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 219. 546 ECtHR (Judgment) Isayeva, Yusupova and Bazayeva v. Russia, nos. 57947/00, 57948/00 and 57949/00, 24 February 2005, paras. 220–223; ECtHR (Judgment) Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, 24 February 2005, paras. 158–159; ECtHR (Judgment) Umayeva v. Russia, no. 1200/03, 4 December 2008, paras. 91–92.

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gas which had been used in an anti-terrorist security operation resulting in the death of more persons, as well as the absence of other documents of the competent crisis cell related to that operation.547 In Jaloud v. the Netherlands the omission with regard to the documents related to the admission in the case file of a list of names of those implicated in a fatal shooting.548 Furthermore, in Baysultanova and Others v. Russia the lack of thoroughness was attributable to the investigators’ failure to indicate the missing man’s distinctive features in their requests for identification among several dead bodies.549 In Vladimir Fedorov v. Russia an issue with documents arose due to the fact that all relevant documentary material had been destroyed in the course of time.550 Failures in the reconstruction of the events may also sometimes be relevant in the assessment of the thoroughness of an investigation. For instance, in Anguelova v. Bulgaria the reconstruction was limited in scope and ignored some important aspects of the arrest of a victim who subsequently died;551 while in Petrović v. Serbia the prosecutor failed to order a reconstruction of the event in which a suspect died after jumping through the window in a police station;552 which was also the case in Filatov v. Russia concerning the beating of an individual by the police,553 and in Ramsahai and Others v. the Netherlands concerning the killing of an individual by the police.554 The hasty conduct of the investigation will be a strong indication of the lack of thoroughness and effectiveness of the procedural obligation. This was the case, for instance, in Akkoç v. Turkey where the only relevant part of the investigation lasted only twelve days,555 or in Orhan v. Turkey where it took the competent investigating officer only a week to conclude his report on a complex investigative process.556 Such a hasty conduct of the investigation often leads to the creation of injudicious hypotheses of the events and unreasoned decisions, which also runs

547 ECtHR (Judgment) Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, 20 ­December 2011, paras. 277 and 279. 548 ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, para. 211. 549 ECtHR (Judgment) Baysultanova and Others v. Russia, no. 7461/08, 4 July 2013, para. 98. 550 ECtHR (Judgment) Vladimir Fedorov v. Russia, no. 19223/04, 30 July 2009, para. 76. 551 ECtHR (Judgment) Anguelova v. Bulgaria, no. 38361/97, 13 June 2002, para. 142. 552 ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para 88. 553 ECtHR (Judgment) Filatov v. Russia, no. 22485/05, 8 November 2011, para. 54. 554 ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 329. 555 ECtHR (Judgment) Akkoç v. Turkey, nos. 22947/93 and 22948/93, 10 October 2000, para. 98. 556 ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 343.

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counter to the requirement of thoroughness of the procedural obligation.557 This can, for instance, be observed in D.J. v. Croatia where dismissive remarks of an investigating judge declining to open an investigation into the victim’s allegations of rape raised an issue of his objectivity and impartiality in respect of his continued conduct of the investigation.558 When this is accompanied with the absence of an effective effort in the verification or rejection of those hypotheses, then a strong indication arises that the requirements of thoroughness and effectiveness have not really been met. Indeed, as the ECtHR has emphasised, “the duty to investigate requires thoroughness and effectiveness in deploying all possible and reasonable means leading to the proper and uncontroversial identification of the circumstances and of those individuals possibly responsible.”559 Moreover, the investigative process must allow for all inconsistencies to be ironed out by a meticulous comparison of the relevant pieces of evidence with one another in relation to specific details or possibly reconstructions.560 This has to be done by reliance on the appropriate echr test.561 There has, for example, been no violation of the state authorities’ positive obligation in Pankov v. Bulgaria where the mechanism of the injury was established and where any causal link between that injury and possible omissions on the part of the authorities was excluded in an uncontroversial manner.562 However, in a case where a victim met his death by jumping through the window of a police station, the authorities’ hypothesis that the death occurred as a result of a suicidal attempt to find an escape route was never investigated in the light of the question why the victim would commit suicide or choose an apparently deadly escape route. In particular, no evidence was collected on his mental state before and during his detention or on any possible reasons for him to commit such an act.563 On the other hand, in Taïs v. France and Vachkovi v. Bulgaria, where a preconceived idea of suicide was formed by the authorities, the ECtHR was not ready to accept a psychological report bringing no exact evidence but negatively portraying the victim.564 557 558 559 560 561 562 563 564

ECtHR (Judgment) Dzhabbarov v. Russia, no. 29926/08, 19 February 2015, para. 44. ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, para. 102. ECtHR (Judgment) Pankov v. Bulgaria, no. 12773/03, 7 October 2010, para. 53. ECtHR (Judgment) Aleksandra Dmitriyeva v. Russia, no. 9390/05, 3 November 2011, para. 68. ECtHR (Judgment) Jaloud v. the Netherlands [gc], no. 47708/08, 20 November 2014, paras. 202–203. ECtHR (Judgment) Pankov v. Bulgaria, no. 12773/03, 7 October 2010, paras. 54–55. ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, para. 112. ECtHR (Judgment) Taïs v. France, no. 39922/03, 1 June 2006, para. 109; ECtHR (Judgment) Vachkovi v. Bulgaria, no. 2747/02, 8 July 2010, paras. 85 and 92.

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Furthermore, concerning the events of alleged suicides during detention in the police station, in Petrović v. Serbia, where the victim died by jumping through a window in the police station, the authorities’ failures in the assessment of the circumstances were easily quantified by the absence of a number of specific pieces of evidence, such as an analysis of the fingerprints and other relevant samples or the questioning of those implicated in the events.565 In Masneva v. Ukraine, concerning the case of the suspicious death, allegedly by suicide, of a police officer during his detention in the police station, the ECtHR reproached the authorities for not making sufficient effort to examine other possible versions of the events,566 which was essentially the same reason for finding a lack of thoroughness of the investigation into the events of suicide in the army in Perevedentsevy v. Russia567 and Tikhonova v. Russia.568 In Durmaz v. Turkey, concerning alleged suicide in the circumstances of family rows, the ECtHR criticised the authorities for not having “an open mind during the investigation” as to the cause of death and eventually found a violation of the procedural obligation.569 Further, in Zelilof v. Greece and Vladimir Romanov v. Russia, concerning allegations of police ill-treatment, the proposition that the victim’s complaints were factually unfounded had been adopted upon a selective and inconsistent approach to the assessment of evidence.570 In particular, for instance, in Akulinin and Babich v. Russia the ECtHR found no reason to accept the authorities’ position of applying different standards when assessing testimonies and considering that those given by the victims were subjective and those given by the police officers were not.571 This was in Vladimir Fedorov v. Russia found to constitute a “deferential attitude to the police officers” which “must be considered to be a particularly serious shortcoming in the investigation.”572 Similarly, in Wasilewska and Kalucka v. Poland the version of the events on which the authorities concentrated, namely that the victim had belonged to an armed gang that had hit a police officer with their car, which had justified the use of fire by the police with the aim of stopping them, did not sit well with the standards on the use of force under the substantive limb of Article 2 and was 565 566 567 568 569 570

ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, para 85. ECtHR (Judgment) Masneva v. Ukraine, no. 5952/07, 20 December 2011, para. 55. ECtHR (Judgment) Perevedentsevy v. Russia, no. 39583/05, 24 April 2014, paras. 115–117. ECtHR (Judgment) Tikhonova v. Russia, no. 13596/05, 30 April 2014, paras. 90–95. ECtHR (Judgment) Durmaz v. Turkey, no. 3621/07, 13 November 2014, para. 56. ECtHR (Judgment) Zalilof v. Greece, no. 17060/03, 24 May 2007, paras. 59–62; ECtHR ­( Judgment) Vladimir Romanov v. Russia, no. 41461/02, 24 July 2008, para. 87. 571 ECtHR (Judgment) Akulinin and Babich v. Russia, no. 5742/02, 2 October 2008, para. 52. 572 ECtHR (Judgment) Vladimir Fedorov v. Russia, no. 19223/04, 30 July 2009, para. 74.

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primarily based on the unconditional acceptance of statements of the police officers.573 The ECtHR also criticised the failure of the prosecuting authorities in Enukidze and Girgvliani v. Georgia to elucidate the connection between the findings of an expert forensic report and the actions of the suspects, consequently leaving the suspects’ individual actions insufficiently explained.574 In Banel v. Lithuania the ECtHR also considered that the investigation into an accidental death after a collapse of a balcony failed to meet the requirement of thoroughness as the prosecuting authorities did not endeavour to identify and prosecute those possibly responsible in the municipal and regional administration.575 2.3.6.2 The Thoroughness of Court Proceedings Failures and flaws in the investigation may have a different impact on the thoroughness of court proceedings. It may be possible for the failures and flaws in the preliminary investigation to be remedied by court proceedings although, in principle, failures in the investigation fundamentally undermine the ability of the court to determine any responsibility.576 That was the case, for instance, in Salman v. Turkey where inadequate autopsy procedures prejudiced an effective outcome of the court proceedings,577 which was also the case in Kılıç v. Turkey, Makaratzis v. Greece or Zashevi v. Bulgaria where the prosecuting authorities failed to present to the trial court sufficient evidence linking the suspects to the crime.578 Furthermore, the same effect could be observed in Ağdaş v. Turkey where the protracted court proceedings were additionally burdened by the failure to examine at the trial the exact cartridges assessed in the ballistic examination and by disregarding the findings of an autopsy report,579 or in Acar and Others v. Turkey where the failures in collecting cartridges during the investigation prejudiced any possibility of remedying this omission at trial.580 573 ECtHR (Judgment) Wasilewska and Kalucka v. Poland, nos. 28975/04 and 33406/04, 23 February 2010, para. 62. See also ECtHR (Judgment) Dimov and Others v. Bulgaria, no. 30086/05, 6 November 2012, para. 84. 574 ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, para. 256. 575 ECtHR (Judgment) Banel v. Lithuania, no. 14326/11, 18 June 2013, para. 71. 576 ECtHR (Judgment) Avşar v. Turkey, no. 25657/94, 10 July 2001, para. 400. 577 ECtHR (Judgment) Salman v. Turkey [gc], no. 21986/93, 27 June 2000, paras. 106–109. 578 ECtHR (Judgment) Kiliç v. Turkey, no. 22492/93, 28 March 2000, paras. 78–93; ECtHR (Judgment) Makaratzis v. Greece [gc], no. 50385/99, 20 December 2004, para. 77; ECtHR (Judgment) Zashevi v. Bulgaria, no. 19406/05, 2 December 2010, para. 58. 579 ECtHR (Judgment) Ağdaş v. Turkey, no. 34592/97, 27 July 2004, para. 103. 580 ECtHR (Judgment) Acar and Others v. Turkey, nos. 36088/97 and 38417/97, 24 May 2005, para. 91.

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On the other hand, in Mladenović v. Serbia, concerning a private criminal prosecution related to alleged police ill-treatment, the ECtHR observed that at the trial competent court had heard the victim, the defendants and many witnesses. Some key witnesses for the defence had also been cross-­examined by the victim. This led the ECtHR to conclude that despite the acquittal of the accused, through the diligence displayed by the trial court in trying to establish the circumstances of the case, the authorities had satisfied their procedural obligation.581 Similar circumstances led the ECtHR to the same conclusion in Otašević v. Serbia.582 Further, court proceedings may fail to meet the requirement of thoroughness due to various other omissions related to the conduct of the proceedings by the competent criminal courts. In these instances, the responsibility for a violation of the state’s procedural obligation rests no longer on the prosecuting authorities but on the courts. In this connection, it should firstly be noted that, similarly to the requirements relevant to the investigation stage, failures in ascertaining the identity or whereabouts of witnesses during the trial also undermine the element of thoroughness of the procedural obligation. This was the case, for instance, in Yüksel Erdoğan and Others v. Turkey and Musa Yılmaz v. Turkey where the relevant witnesses were not identified and questioned during the trial.583 Moreover, in the latter case, a similar effect was created with regard to obtaining the relevant medical expert evidence where the overall length of proceedings impeded any effective commissioning of an expert report during the trial.584 Failures in compliance with the procedural obligation at the trial stage of the proceedings may also relate to specific evidentiary actions in the assessment of the relevant facts. In Yüksel Erdoğan and Others v. Turkey this related to the trial court’s failure to conduct an on-site inspection of the scene.585 An aspect unsurprisingly undermining the thoroughness of court proceedings are the failures related to the requirements of a fair trial, but this time viewed not from the perspective of the accused but from the perspective of the victims. Specifically, in Enukidze and Girgvliani v. Georgia such failures primarily 581 ECtHR (Judgment) Mladenović v. Serbia, no. 1099/08, 22 May 2012, para. 34. 582 ECtHR (Judgment) Otašević v. Serbia, no. 32198/07, 5 February 2013, para. 34. 583 ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 112; ECtHR (Judgment) Musa Yılmaz v. Turkey, no. 27566/06, 30 November 2010, para. 55. 584 ECtHR (Judgment) Musa Yılmaz v. Turkey, no. 27566/06, 30 November 2010, para. 54. 585 ECtHR (Judgment) Yüksel Erdoğan and Others v. Turkey, no. 57049/00, 15 February 2007, para. 113.

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related to the domestic courts’ persistent refusal to provide the victims with sufficient time and facilities to study the case materials, which consequently deprived them of the opportunity to prepare their case and participate effectively in the trial. The domestic courts also declined any attempt of the victims to collect and examine further evidence and eventually, in their assessment of the case, made a manifestly selective assessment of evidence.586 Similarly, in Öneryildiz v. Turkey the competent court failed to provide sufficient reasoning in its judgment relevant to the victims’ particular arguments and position.587 Other cases in which the domestic authorities’ procedural obligation may be satisfied by providing effective court proceedings concern private prosecution. This was not the case, for example, in Bajić v. Croatia where the trial court failed to avert an obvious conflict of interests of the expert witnesses in a medical negligence case,588 or in Starčević v. Croatia where the trial court omitted to verify the subsidiary prosecutor’s compliance with the formal requirements for lodging an indictment in the case concerning death caused in a road accident.589 Lastly, as already previously noted, the question of an appropriate punishment falls under the scope of effectiveness of the procedural obligation. As it affects efficiency of the authorities’ procedural response, the failures in that regard may also be examined under the head of thoroughness or effectiveness in the narrow sense. In that connection, the requirements analysed in the context of the scope of the procedural obligation accordingly apply in determining the thoroughness of the authorities’ compliance with the procedural requirements under the echr.590 It should be also noted at this point that the findings and conclusions of the competent criminal courts are also assessed in the context of thoroughness of the procedural obligation. An illustrative example is the case of Galotskin v. Greece, concerning allegations of police ill-treatment, where an issue in the context of thoroughness of the procedural obligation arose already at the arraignment stage of the proceedings due to the fact that the competent court committed the suspected police officer to trial only with regard to the alleged ill-treatment during the time of the victim’s stay in the police station 586 ECtHR (Judgment) Enukidze and Girgvliani v. Georgia, no. 25091/07, 26 April 2011, paras. 259–267. 587 ECtHR (Judgment) Öneryildiz v. Turkey [gc], no. 48939/99, 30 November 2004, para. 116. 588 ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, paras. 94–102. 589 ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, paras. 60–65. 590 See further: ECtHR (Judgment) Myumyun v. Bulgaria, no. 67258/13, 3 November 2015, ­paras. 65–78.

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­ hereas, at the same time, it found that the victim had plausibly been injured w in a preceding period, namely during his arrest. Later on, a certain number of witnesses gave evidence that the victim had already been injured by the time he had been brought to the police station. However, the defendant police officer was acquitted on the grounds of discrepancies in the victim’s testimony, namely the fact that he had stated that his injuries had been caused by the accused, who had ill-treated him inside the police station, whereas three eyewitnesses had stated that he had already been injured by the time he had been brought to the police station. In these circumstances, the ECtHR observed that the victim in fact argued that his injuries had been the result of ill-treatment inflicted before and after his transfer to the police station. In any event, it noted that the domestic court had based its reasoning on testimony establishing that the victim had indeed been injured during his arrest. For the ECtHR, the fact that the evidence capable of demonstrating the criminal responsibility of the defendant police officer at an early stage of the events was used as a means of sparing him from charges with regard to his subsequent conduct was “a logical contradiction” falling foul of the authorities’ procedural obligation.591 Similarly, in Mesut Deniz v. Turkey, concerning ill-treatment in custody, the ECtHR observed that the prosecuting authorities had failed to identify and question the witnesses and to pay attention to the victim’s mental instability which prevented him from providing comprehensive evidence. In these circumstances, the trial court found that the victim had been ill-treated but failed to identify and punish the perpetrators, which undermined the thoroughness and adequacy of the authorities’ compliance with their procedural obligation.592 3

Article 4 echr (Prohibition of Slavery and Forced Labour)

3.1 Applicability of the Procedural Obligation The first case in which the positive obligations under Article 4 were construed was Siliadin v. France593 in which the ECtHR was faced with allegations of trafficking of a child for the purpose of forced labour.594 It has already been observed above that in the Siliadin case the ECtHR developed the concept of positive obligations under Article 4 as structurally referring to: (1) adequate 591 592 593 594

ECtHR (Judgment) Galotskin v. Greece, no. 2945/07, 14 January 2010, para. 49. ECtHR (Judgment) Mesut Deniz v. Turkey, no. 36716/07, 5 November 2013, para. 55. ECtHR (Judgment) Siliadin v. France, no. 73316/01, 26 July 2005. See further: Cullen, supra n. 1.194.

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protection through the penalisation of slavery and forced labour, and (2) effective application in practice of the law prohibiting such conduct. The former limb of the positive obligations refers to substantive or ad ante protection from practices prohibited under Article 4. The latter aspect, denoting the procedural obligation, was further developed in several other cases concerning allegations of human trafficking. In Rantsev v. Cyprus and Russia, concerning trans-border trafficking for sexual exploitation, the ECtHR explained that “[l]ike Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking” which, where appropriate, must result in the prosecution and punishment of those responsible.595 In this context civil remedies are not sufficient.596 The findings in Rantsev followed not only from the Siliadin principles but also from other international materials, such as the Palermo Protocol, referring to the need for a comprehensive approach to combat trafficking, including measures to prevent trafficking and to protect the victims, in addition to measures to punish the traffickers. Accordingly, only a combination of measures addressing all three aspects can be effective in the fight against trafficking and thus the duty to penalise and prosecute trafficking is only one aspect of the states’ general undertaking to combat trafficking.597 The same principles were applied to cases concerning allegations of other types of human trafficking, including sexual abuse and subjection to forced labour;598 prostitution;599 and cases concerning the allegations of domestic servitude.600 3.2 Effectiveness of the Procedural Obligation In the case of Rantsev v. Cyprus and Russia, when setting out the requirements of effectiveness of the procedural obligation, the ECtHR, expressly referring to Articles 2 and 3, reiterated all the procedural requirements under those two provisions already observed in this study. In particular, the ECtHR stressed the need for ex officio institution of the proceedings once the matter has come to the attention of the authorities. Furthermore, the proceedings must observe the requisite standard of impartiality and independence from 595 596 597 598 599 600

ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 288. ECtHR (Judgment) L.E. v. Greece, no. 71545/12, 21 January 2016, para. 56. ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, para. 285. ECtHR (Judgment) M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012, para. 167. ECtHR (Judgment) L.E. v. Greece, no. 71545/12, 21 January 2016, para. 46. ECtHR (Judgment) C.N. and V. v. France, no. 67724/09, 11 October 2012, para. 109; ECtHR (Judgment) C.N. v. the United Kingdom, no. 4239/08, 13 November 2012, para. 69.

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those i­ mplicated in the events; they must be conducted with promptness and reasonable expedition, removing the individual concerned from the harmful situation as a matter of urgency; and the victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests. Moreover, the proceedings must be sufficiently thorough in that they are capable of leading to the identification and punishment of those responsible. Furthermore, in view of the particular nature of trafficking in human beings as a phenomenon not confined to the domestic arena, specific procedural requirements of transnational cooperation and establishing criminal jurisdiction arise. These have been previously observed in detail in the context of the cases with transnational elements.601 In the particular circumstances of Rantsev, after having found a violation of the Cypriot authorities’ compliance with the procedural obligation under Article 2, the ECtHR considered that no separate issue arose with regard to the responsibility of Cyprus under the procedural obligation under Article 4. In this connection, it should be noted that the investigation carried out into the death of the victim in Rantsev by the Cypriot authorities primarily fell short of the requirement of thoroughness implicit in the procedural obligation. In particular, the authorities failed to resolve some conflicting testimonies and inconsistencies in evidence related to the circumstances of the events leading to the victim’s death. They also failed to identify and question those who had knowledge of the circumstances of the victim’s life in Cyprus, as well as to inquire into distinctive indications of human trafficking, or engage in mechanisms of mutual legal assistance with their Russian counterparts. In addition to these issues of a lack of thoroughness, the victim’s next-of-kin was not able to participate effectively in the proceedings as all his requests were ignored.602 As to the responsibility of Russia under the procedural obligation in the context of Article 4, the ECtHR considered that there had been failures in investigating the circumstances of the victim’s recruitment and departure from Russia to Cyprus, in particular in the identification of those involved in the victim’s recruitment or the methods of recruitment used.603 In the case of L.E. v. Greece, as in other cases examined under Articles 2 and 3 echr, the ECtHR examined the lack of diligence of the domestic authorities in the identification of witnesses and apprehension of the suspect 601 ECtHR (Judgment) Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010, paras. 288–289. 602 Ibid., paras. 234–242 and 300. 603 Ibid., paras. 308–309.

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as well as protracted length of an investigation into the credible allegations of human trafficking for the purpose of prostitution.604 In M. and Others v. Italy and Bulgaria, concerning the particular circumstances of a case involving alleged human trafficking of a Roma family from Bulgaria to Italy, the ECtHR excluded the allegations of human trafficking under Article 4 but examined the complaint related to the procedural obligation of the Italian authorities in respect of the allegations of human trafficking under Article 3. In particular, the ECtHR observed that the allegations of activities related to human trafficking undoubtedly amounted to inhuman and degrading treatment under Article 3, giving rise to the procedural obligation of the Italian authorities. In consequence, a hasty preconceived hypothesis of the Italian authorities that the case concerned “Roma marriage,” without any verification of all allegations made by the victim, ran counter to the procedural obligation under Article 3.605 In a domestic servitude case, C.N. and V. v. France, examined under Article 4, the ECtHR reiterated the procedural requirements from Rantsev, in particular those related to independence, promptness and thoroughness of the investigation. Having found no failure on the part of the authorities in any of these aspects, primarily related to the fact that the victims had at the time withheld some crucial information from the authorities, the ECtHR concluded that there had been no violation of Article 4.606 Conversely, in another domestic servitude case, C.N. v. the United Kingdom, the ECtHR found a violation of Article 4. In particular, it observed that the level of probability necessary to trigger the procedural obligation was a credible suspicion that an offence of trafficking had taken place. Having found that in the case at issue such credible suspicion had arisen primarily from the victim’s allegations made in the course of her asylum procedure, the ECtHR concluded that the authorities’ procedural obligation to investigate such allegations had been triggered. However, the ECtHR found that due to the absence of a specific offence of domestic servitude, the domestic authorities were unable to give due weight to all the relevant factors of the case. Moreover, the investigation disclosed a degree of a lack of thoroughness on the part of the investigative authorities given that the main suspect of forced labour had never been questioned.607 604 605 606 607

ECtHR (Judgment) L.E. v. Greece, no. 71545/12, 21 January 2016, paras. 82–85. ECtHR (Judgment) M. and Others v. Italy and Bulgaria, no. 40020/03, 31 July 2012, para. 106. ECtHR (Judgment) C.N. and V. v. France, no. 67724/09, 11 October 2012, paras. 109–111. ECtHR (Judgment) C.N. v. the United Kingdom, no. 4239/08, 13 November 2012, paras. 70–82.

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Article 5 echr (Right to Liberty and Security)

4.1 Applicability of the Procedural Obligation Unacknowledged detention and secret rendition are the two principal instances of arbitrary deprivations of liberty amounting to a negation of the essential guarantees of Article 5.608 Similarly to other instances of serious substantive human rights violations, such attacks on individual liberty and security inevitably mandate an effective procedural response. In Kurt v. Turkey, the first case in which it addressed the matter, the ECtHR explained that the right to liberty and security under Article 5 must be read as “guaranteeing a corpus of substantive rights which are intended to minimise the risks of arbitrariness by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act.”609 It follows that this provision contains two procedural aspects: first, related to the requirement of judicial scrutiny concurrent to the act of deprivation of liberty; and second, mandating for ex post facto mechanisms of securing accountability for the acts of arbitrary deprivation of liberty. At the same time, as the ECtHR explained, Article 5 places emphasis on promptitude and judicial control which are not only mandated by the ­principle of individual liberty but also by the fact that a prompt judicial intervention may lead to the detection and prevention of threats to life or serious ill-­treatment which violate the fundamental guarantees of Articles 2 and 3. If it were otherwise, the rule of law could be subverted and detainees could be placed beyond the reach of the most rudimentary forms of legal protection.610 These considerations impose on the domestic authorities the r­ equirement to account for the whereabouts of a person over whom they have assumed control. In other words, the domestic authorities must: (1) take effective measures to safeguard individuals against the risk of disappearance, and (2) conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since or has been arbitrarily held in custody.611 608 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 233. 609 ECtHR (Judgment) Kurt v. Turkey, no. 24276/94, 25 May 1998, para. 123. 610 Loc. cit. 611 Ibid., para. 124; see further: ECtHR (Judgment) Çakici v. Turkey [gc], no. 23657/94, 8 July 1999, para. 104; ECtHR (Judgment) Timurtaş v. Turkey, no. 23531/94, 13 June 2000, para. 103; ECtHR (Judgment) Çiçek v. Turkey, no. 25704/94, 27 February 2001, para. 164; ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 369; ECtHR (Judgment)

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The specific aspects of the procedural requirements under Articles 2 and 3 bear significance for the issues which may simultaneously arise under Article  5. This means in particular that the procedural obligation (principally) arises as a requirement of an official effective investigation although, in the circumstances, it may also be satisfied by securing an adequate regulatory framework including an effective judicial system, which does not necessarily require recourse to the criminal-law mechanisms. This can be observed, for instance, in the case of a psychiatric internment in Akopyan v. Ukraine where the alleged irregularity of the conduct was undoubtedly established to be of a negligent nature.612 4.2 Effectiveness of the Procedural Obligation Given that the question of arbitrary deprivation of liberty in the context of unacknowledged detentions and secret renditions ordinarily arises simultaneously under Articles 2 and 3, the ECtHR primarily addresses the matter of the procedural obligation under the latter two provisions. This automatically leads to a finding of a violation of the ex post facto procedural aspect of Article 5.613 This concurrent relevancy of the procedural requirements under Articles 2 and 3 to the complaints made under Article 5 can be observed in the case of Kurt v. Turkey where the ECtHR considered that the procedural obligation to investigate alleged arbitrary deprivation of liberty arose as an official duty of the competent prosecutor based on the adamant insistence of the victim’s next-of-kin that he had been arbitrarily detained. However, the passive attitude of the prosecutor left these complaints unaccounted for. Instead, the prosecutor relied only on the gendarmerie’s account of the events and a hasty, preconceived hypothesis that the victim had been abducted by terrorists. In this

Varnava and Others v. Turkey [gc], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009, para. 208; E ­CtHR ­( Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 233; ECtHR (Judgment) Dzhabrailov and Others v. Russia, nos. 8620/09, 11674/09, 16488/09, 21133/09, 36354/09, 47770/09, 54728/09, 25511/10 and 32791/10, 27 February 2014, paras. 329–330; ECtHR (Judgment) Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014, para. 523; ECtHR (Judgment) Al Nashiri v. Poland, no. 28761/11, 24 July 2014, para. 529. 612 ECtHR (Judgment) Akopyan v. Ukraine, no. 12317/06, 5 June 2014, paras. 89–90. 613 ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 373; ECtHR (Judgment) Varnava and Others v. Turkey [gc], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009, para. 208; ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 242.

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respect, the ECtHR also observed tendentious questioning of witnesses who had been led into confirming the authorities’ official version of the events.614 Similar to what was observed in Kurt, in Çakici v. Turkey the ECtHR stressed that any delays in the investigation following a report that the victim’s body had been found were incompatible with the authorities’ procedural obligation. Moreover, it held that the investigation into the allegations of an offence of this kind could not be satisfied by the mere inspection of the custody records.615 This was particularly true in Timurtaş v. Turkey where no official custody records existed.616 Moreover, in Çiçek v. Turkey the ECtHR held that irrespective of the custody records the competent investigating authorities were obliged to pursue existing leads into the disappearance of an individual.617 5

Article 8 echr (Right to Respect for Private and Family Life)

5.1 Applicability of the Procedural Obligation Article 8 conceptually, in terms of the state obligations, has the same structure as the other above-observed substantive echr norms. In particular, it comprises: (1) a negative obligation of prohibition of arbitrary and unjustified interference by the state authorities; (2) a positive obligation to ensure effective respect for rights guaranteed under that provision; and (3) an effective procedural response to any infringements or (measures leading up to) interferences with those rights.618 The latter aspect could be denoted as a specific procedural requirement forming part of the general concept of positive obligations under Article 8. It should be noted, however, as already observed in this study, that, viewed generally, the state’s positive and negative obligations are similar and do not lend themselves to a precise distinction.619 Similarly to their negative obligations, when complying with their positive obligations the states enjoy a certain margin of appreciation, whose breadth depends on several factors, in particular on the interests involved. As a rule, that margin is restricted when a particularly 614 615 616 617 618

ECtHR (Judgment) Kurt v. Turkey, no. 24276/94, 25 May 1998, paras. 126–129. ECtHR (Judgment) Çakici v. Turkey [gc], no. 23657/94, 8 July 1999, para. 106. ECtHR (Judgment) Timurtaş v. Turkey, no. 23531/94, 13 June 2000, para. 105. ECtHR (Judgment) Çiçek v. Turkey, no. 25704/94, 27 February 2001, para. 167. D. Harris, M. O’Boyle, E. Bates and C. Buckley, Law of the European Convention on Human Rights, Third edition (Oxford, Oxford University Press 2014), pp. 531–535. 619 Note that the issue of indisociable positive and negative obligations was conceived under the concept of democratic limit of obligations. See supra 2 2.2.

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important facet of an individual’s existence or identity is at stake while it may be wider if the state is required to strike a balance between competing private and public interests or the echr rights.620 The procedural obligation is applicable to any of the four enumerated concepts under Article 8: private and family life, home and correspondence. All these concepts have autonomous meanings under the echr and in principle extend to a number of different legal areas and situations in a particular domestic legal order, which cannot be restricted by any strict normative denomination under the relevant domestic law. The broadest concept under Article 8 is the one of private life. That concept is not susceptible to exhaustive definition. It encompasses all aspects of personal integrity and autonomy,621 including various aspects related to the free pursuit of development and fulfilment of personality.622 It also covers the moral and physical integrity of the person, relevant, inter alia, to personal liberty. Moreover, it secures the right to establish and develop relationships with other human beings and the outside world.623 Family life is the real existence in practice of close personal ties between individuals, irrespective of its formal recognition under the relevant national law.624 Similarly, home is any place with which an individual has sufficient continuous links irrespective of its classification in domestic law.625 Lastly, the right to respect for correspondence protects the confidentiality of private communications irrespective of their content and form. In other words, Article 8 protects the confidentiality of all the exchanges in which individuals may engage for the purposes of communication.626 5.2 Particular Instances of the Applicability of the Procedural Obligation It follows from the ECtHR case-law in general that the procedural obligation of the application of criminal-law mechanisms will arise whenever a particular facet of a right protected under Article 8 requires substantive criminal-law ­protection. A strong indication in that respect will be the judgment of a domestic legal order that a particular interest at issue should be protected by 620 See further: ECtHR (Judgment) Hämäläinen v. Finland [gc], no. 37359/09, 16 July 2014, para. 65–68. 621 ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, para. 70. 622 ECtHR (Judgment) Shtukaturov v. Russia, no. 44009/05, 27 March 2008, para. 83. 623 ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012, para. 248. 624 ECtHR (Judgment) K. and T. v. Finland, no. 25702/94, 12 July 2001, para. 150. 625 ECtHR (Judgment) Prokopovich v. Russia, no. 58255/00, 18 November 2004, para. 37. 626 ECtHR (Judgment) Michaud v. France, no. 12323/11, 6 December 2012, para. 90.

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criminal law.627 When that is the case, the states should secure the effective implementation of such protection, which is equally important for the promotion of the protected public interest involved and the private interest of the victim to have those responsible identified and brought to justice.628 Accordingly, the states should secure the enforcement of substantive criminal-law provisions by effective investigation and prosecution of those responsible. This will frequently be the case with the physical and psychological integrity of individuals, particularly those vulnerable, such as children. In the Söderman case, the ECtHR explained that Article 8 implied a duty to maintain and apply in practice an adequate legal framework affording protection against violent acts. It relates to two instances of positive actions: (1) substantive – requiring an ad ante protection; and (2) procedural – requiring an adequate and effective ex post procedural response. This will not always mandate protection through the criminal-law mechanisms; but such a form of protection will be necessary where fundamental values and essential aspects of private life are at stake. Whereas, for instance, the ECtHR held this to be the case with sexual abuse629 and paedophilia,630 it was not so with the covert filming of a child, where the civil law remedies could also suffice,631 or in case of the entering in the changing room of children by a sports teacher,632 as well as an ongoing long-lasting dispute between neighbours allegedly infringing the psychological integrity of an individual.633 In this context it should be also noted that the requirement of criminal-law protection under Article 8 could coincide with the same requirement under Article 3. This is particularly the case in instances of serious attacks on private life of an individual, such as those of sexual abuse and rape,634 or other violent attacks leaving physical injuries,635 including instances of domestic violence.636 However, treatment which does not reach a level of severity under Article 3 echr may breach the private-life aspect of Article 8, if the effects on 627 628 629 630 631 632 633 634 635 636

ECtHR (Judgment) Ageyevy v. Russia, no. 7075/10, 18 April 2013, para. 197. ECtHR (Judgment) K.U. v. Finland, no. 2872/02, 2 December 2008, paras. 45–49. ECtHR (Judgment) X and Y v. the Netherlands, no. 8978/80, 26 March 1985, para. 27. ECtHR (Judgment) K.U. v. Finland, no. 2872/02, 2 December 2008, para. 49. ECtHR (Judgment) Söderman v. Sweden [gc], no. 5786/08, 12 November 2013, paras. 78–85. ECtHR (Judgment) A, B and C v. Latvia, no. 30808/11, 31 March 2016, paras. 155–158. ECtHR (Decision) B.V. and Others v. Croatia, no. 38435/13, 15 December 2015, paras. 154–162. ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, para. 153. ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, para. 67. ECtHR (Judgment) Bevacqua and S. v. Bulgaria, no. 71127/01, 12 June 2008, para. 65.

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an individual’s physical and moral integrity are sufficiently adverse. This was the case in R.B. v. Hungary where the ECtHR found that harassment motivated by racism, including verbal assaults and physical threats, triggered the authorities’ procedural obligation in the sphere of criminal law.637 The applicability of the protection through criminal-law mechanisms under Article 8 extends from considerations of private life to other specific aspects guaranteed under that provision. This includes instances such as those relating to the confidentiality of correspondence and private life where the ECtHR explained that positive obligations in general require the authorities to take appropriate safeguards to prevent unjustified disclosures of a private nature. Accordingly, when such disclosure occurrs, the ECtHR has held that “the positive obligation inherent in the effective respect of private life implies an obligation to carry out effective inquiries in order to rectify the matter to the extent possible.”638 In the context of the right to home, the ECtHR has examined the effectiveness of a criminal investigation into the allegations of an unlawful search of a flat as one of the remedial measures for such an interference with the amenity of an individual’s home.639 All these observed instances of applicability of the procedural obligation, notwithstanding the operational differences flowing from the inherent nature of Article 8 as a qualified right, essentially follow the same logic related to the requirement of an effective investigation as conceptualised under the echr. It should be noted, however, that in these general instances the procedural obligation is ordinarily deduced from the wider concept of positive obligations rather (directly) as an inherent limb of Article 8.640 This can be observed in the development of the concept of procedural obligation under Article 8. The first case in which the ECtHR touched upon the issue was Osman v. the United Kingdom, which primarily dealt with the question of the state’s positive obligation under Article 2 to protect the life of an individual from the menace of another individual. However, with regard to the specific complaints made by the victims under Article 8, contending that the police had failed to investigate the attacks on their home and their harassment, the ECtHR engaged in an analysis of the actions taken by the police before finding a no violation of Article 8. In particular, it observed that the police had taken all reasonable procedural means at their disposal, such as questioning the suspect and assessing the available evidence, before 637 638 639 640

ECtHR (Judgment) R.B. v. Hungary, no. 64602/12, 12 April 2016, paras. 78–85. ECtHR (Judgment) Craxi v. Italy (No. 2), no. 25337/94, 17 July 2003, paras. 73–74. ECtHR (Judgment) Bagiyeva v. Ukraine, no. 41085/05, 28 April 2016, paras. 61–64. ECtHR (Judgment) K.U. v. Finland, no. 2872/02, 2 December 2008, para. 46.

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concluding that there was no sufficient evidence to proceed with the case.641 These considerations were read into the facts of a rape case, M.C. v. Bulgaria, as implying that the requirements under “Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation,” which accordingly meant that the states have not only a positive obligation to enact criminal-law provisions proscribing the impugned practices but also “to apply them in practice through effective investigation and prosecution.”642 There are, however, two particular conceptual approaches to the procedural obligation under Article 8 that should be noted. The first relates to the instances of negligence where the ECtHR has held, similar to what has been observed with regard to Articles 2 and 3, that the procedural obligation is a wider requirement of an adequate regulatory framework including an effective judicial system capable of ensuring the establishment of liability for negligence and granting corresponding award or compensation.643 The second particularity relates to cases of private violence. In such instances, the echr does not necessarily require state-assisted prosecution against the attacker in order to secure the individuals’ rights. Consequently, the states could meet their procedural obligation by putting in place an adequate and effective criminal-law mechanism enabling the victim to have those responsible held to account.644 5.3 Effectiveness of the Procedural Obligation 5.3.1 The General Approach In M.C. v. Bulgaria, as the first case in which the ECtHR dealt with the particular requirements of effectiveness of the procedural obligation under Article 8, and after having found Article 3 to be also applicable in the circumstances, the ECtHR proceeded to analyse the question of the procedural effectiveness without separating it with regard to the two echr provisions. Moreover, it set the standard for the assessment of effectiveness of the procedural obligation under both provisions to significant flaws, as opposed to allegations of errors or isolated omissions in the investigation.645 Against this principle, in the case 641 ECtHR (Judgment) Osman v. the United Kingdom [gc], no. 23452/94, 28 October 1998, para. 129. 642 ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, paras. 152–153. 643 ECtHR (Judgment) Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, 26 July 2011, para. 52; ECtHR (Judgment) Csoma v. Romania, no. 8759/05, 15 January 2013, para. 43; ECtHR (Judgment) S.B. v. Romania, no. 24453/04, 23 September 2014, para. 66. 644 ECtHR (Judgment) Sandra Janković v. Croatia, no. 38478/05, 5 March 2009, para. 50. 645 ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, paras. 167–168. See further: ECtHR (Decision) H. v. Iceland, no. 29785/07, 27 September 2011; ECtHR (Decision) B.c. v. Slovakia, no. 11079/02, 14 March 2006.

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of Söderman v. Sweden the ECtHR stressed that “there is no absolute right to obtain the prosecution or conviction of any particular person where there [are] no culpable failures in seeking to hold perpetrators of criminal offences accountable.”646 The culpable failures or significant flaws were eventually identified in M.C. v. Bulgaria where effectiveness of the investigation was seriously undermined by the defective domestic legislative framework criminalising rape. This seriously impeded the investigative conclusions and, despite the efforts made in the course of the investigation, left some crucial surrounding circumstances of the case undetermined. Specifically, the prosecuting authorities failed to test the credibility of the conflicting versions of the events and to confront certain witnesses. They also made no attempt to establish with more precision the timing of the events. Furthermore, the ECtHR observed the impossibility for the victim to effectively participate in the investigation by having her representative putting questions to witnesses whom she had accused of perjury, and failures with regard to the requirement of promptness and reasonable expedition related to significant delays in the investigation.647 Similarly, in K.U. v. Finland, concerning the placement of an advertisement of a paedophilic nature on the Internet by an unknown person, the effectiveness of the procedural obligation, which mandated effective steps to identify and prosecute the perpetrator, was undermined due to a deficient legislative framework related to the requirement of confidentiality of information.648 In the subsequent case-law on Articles 3 and 8 examined together, the ­ECtHR followed the conceptual approach developed in M.C. v. Bulgaria examining significant flaws rather than allegations of errors or isolated omissions in the assessment of the procedural obligation under Article 8. Examples include the case of M. and C. v. Romania, concerning the allegations of sexual abuse of a child in a family, where the ECtHR observed that the domestic authorities had undertaken a number of procedural measures to investigate the allegations of sexual abuse but had failed, faced with such a delicate situation, to examine all the surrounding circumstances related to the conflicting witness statements, the exact time of the events and all the possible hypotheses of the offence. Moreover, this was accompanied by a significant delay of almost two years in which the proceedings were pending before the competent prosecutor without any activity being taken.649 Similar failures of the lack of an effective examination of the surrounding circumstances of a case have led to the finding 646 ECtHR (Judgment) Söderman v. Sweden [gc], no. 5786/08, 12 November 2013, paras 83, 90–91. 647 ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003, paras. 177–185. 648 ECtHR (Judgment) K.U. v. Finland, no. 2872/02, 2 December 2008, para. 49. 649 ECtHR (Judgment) M. and C. v. Romania, no. 29032/04, 27 September 2011, paras. 107–123.

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of a violation of Articles 3 and 8 echr in the case of M.G.C. v. Romania.650 On the other hand, in M.P. and Others v. Bulgaria, also concerning the allegations of sexual abuse of a child in the family environment, where no such omissions in effectiveness and expedition of the proceedings were found, the ECtHR concluded that there had been no violation of Articles 3 and 8.651 In the context of the M.C. case-law, in the case of Szula v. the United K ­ ingdom, concerning the sexual abuse of a child, the ECtHR, against the principle that there is no absolute right to obtain the prosecution or conviction of any particular person under Articles 3 and 8, found no elements of “culpable disregard, discernible bad faith or lack of will on the part of the police or prosecuting authorities” to hold those responsible to account. In particular, it observed that the prosecuting authorities displayed the necessary diligence and duly complied with the requirement of expedition in the investigation and prosecution of the offences at issue. Such conclusion followed from the appropriate convictions of three responsible individuals and a sufficiently reasoned and convincing decision not to prosecute a fourth person.652 Similarly, in Radionova v. Russia, concerning the allegations that a choreography school teacher hit a child for performing an exercise incorrectly, the ECtHR held that the authorities’ procedural obligation had been duly discharged by the prompt taking of the investigative actions and provision of detailed and convincing reasons for the decision not to prosecute.653 Further, in Ebcin v. Turkey, concerning a serious physical attack against a school teacher examined under Articles 3 and 8, the ECtHR reiterated the general procedural requirements of effectiveness developed under Articles 2 and 3. In the circumstances of that case, an issue arose with regard to the requirement of promptness and reasonable expedition. The overall length of the investigation and court proceedings of seven years was in itself considered inappropriate to satisfy the procedural obligation under the echr.654 This ruling, although somewhat overly direct, was not without precedent. It does not in any respect contradict the elements observed above in respect of previous case-law concerning the requirement of effectiveness of the procedural obligation under Article 8, which essentially reflect the requirements developed under Articles 2 and 3. In this connection it could be observed that, 650 ECtHR (Judgment) M.G.C. v. Romania, no. 61495/11, 15 March 2016, paras. 71–75. 651 ECtHR (Judgment) M.P. and Others v. Bulgaria, no. 22457/08, 15 November 2011, paras. 111–113. 652 ECtHR (Decision) Szula v. the United Kingdom, no. 18727/06, 4 January 2007. 653 ECtHR (Decision) Radionova v. Russia, no. 36082/02, 26 March 2009. 654 ECtHR (Judgment) Ebcin v. Turkey, no. 19506/05, 1 February 2011, paras. 38–40, 52–56.

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for instances, in Moldovan and Others v. Romania, preceding the case-law in Ebcin, the inactivity of the prosecuting authorities in responding to a rampage by an angry mob on a Roma settlement with the acquiescence of the police was also identified as one of the procedural failures leading to a violation of Article 8 under the head of private and family life and home.655 Furthermore, in the subsequent case-law in Kowal v. Poland, involving an issue of domestic violence under Article 8, the ECtHR examined to what extent the requirement of effectiveness of the procedural obligation relating to the appropriate punishment of the perpetrator had been met. Specifically, the ­ECtHR found that the criminal proceedings had lasted a total of six months, which did not appear unreasonable, and that the perpetrator had been p ­ unished by a suspended sentence of imprisonment intended to protect the victims against domestic violence. In addition, the perpetrator’s failure to comply with the conditions of the suspension of sentence led to the reopening of the case and an order for his removal from the family home. Accordingly, the ­ECtHR concluded that the authorities’ response was not manifestly inadequate with respect to the gravity of the offences in question.656 There are two essential aspects that should be noted in Ebcin and Kowal. Firstly, the requirements of the procedural obligation under Articles 2 and 3 are capable of informing the requirement of effectiveness of the procedural obligation under Article 8. Secondly, the relevant assessment of effectiveness cannot be examined without the necessary regard to the gravity of the offences in question. In this connection it should be noted that in Zorica Jovanović v. Serbia, concerning a case of allegedly stolen babies, the ECtHR applied the case-law on enforced disappearances under Article 2 to the particular circumstances of the case examined under Article 8. Based on the identified shortcomings in the legislation and the conduct of the authorities, the ECtHR found a violation of the latter provision.657 Likewise, in Ageyevy v. Russia the ECtHR examined the alleged failures in the criminal investigation into the disclosure of confidential information concerning the adoption of a child and found a violation of the authorities’ procedural obligation under Article 8 related to the protracted length of proceedings and the lack of diligence in the questioning of all those implicated in the events. These are both, and particularly the latter, ordinary present requirements of

655 ECtHR (Judgment) Moldovan and Others v. Romania (No. 2), nos. 41138/98 and 64320/01, 12 July 2005, paras. 107–109. 656 ECtHR (Decision) Kowal v. Poland, no. 2912/11, 18 September 2012, paras. 49–55. 657 ECtHR (Judgment) Zorica Jovanović v. Serbia, no. 21794/08, 26 March 2013, paras. 70–75.

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the procedural obligation under Articles 2 and 3.658 The ruling in Ageyevy finds a strong and convincing precedent in Craxi v. Italy.659 Similarly, the excessive length of the court proceedings, ending in the prescription of prosecution, in itself led to a violation of the authorities’ procedural obligation under Article 8 concerning the act of private violence in Remetin v. Croatia.660 5.3.2 Private Prosecution The first case to bring the question of private prosecution under Article 8 into focus was Bevacqua and S. v. Bulgaria. The case concerned an instance of domestic violence brought before the ECtHR under Articles 3, 8, 13 and 14, but eventually examined only under Article 8. With regard to the specific allegations of domestic violence affecting the victims’ physical integrity and well-­being, as well as effective exercise of the contact rights between the parents and children, the ECtHR observed two avenues in the domestic system to which the victims could resort: civil proceedings and private prosecution. Specifically, the ECtHR rejected the victims’ assertion that in all instances of domestic violence the echr required state-assisted prosecution, as opposed to prosecution by the victim, although it did not exclude that in some instances such a domestic legal framework could prove to be incompatible with the echr. That was exactly the case in the particular circumstances of the case at issue where the defects in the Bulgarian legal system had the effect of making any private prosecution for domestic violence a lengthy endeavour without the real possibility of preventing recurrence of the incidents complained of.661 In applying the Bevacqua approach to other instances of private violence examined under Article 8, the ECtHR apparently followed two rules: firstly, the level of state involvement should depend on the severity of the violence complained of, and secondly, even where the private prosecution could be considered in abstracto as an appropriate legal avenue, it should be effective in practice in order to satisfy the procedural obligation under the echr. The conclusion that the Bevacqua approach is applicable to other instances of private violence most obviously follows from the ECtHR case-law in Sandra Janković v. Croatia. In that particular case, like in other instances of private violence, the ECtHR was explicit in rejecting the respondent Government’s submission as to the possibility for the victim to use civil remedies by stressing that the attacks on the physical integrity of a person required efficient criminal-law 658 659 660 661

ECtHR (Judgment) Ageyevy v. Russia, no. 7075/10, 18 April 2013, paras. 169–200. ECtHR (Judgment) Craxi v. Italy (No. 2), no. 25337/94, 17 July 2003, para. 75. ECtHR (Judgment) Remetin v. Croatia, no. 29525/10, 11 December 2012, paras. 98–108. ECtHR (Judgment) Bevacqua and S. v. Bulgaria, no. 71127/01, 12 June 2008, paras. 82–83.

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mechanisms. Those mechanisms, in the instances of private violence, could also be secured by private criminal prosecution. However, in Sandra Janković, similarly to Bevacqua, the mechanism of private prosecution turned out to be ineffective in practice and thus led to a violation of the state’s procedural ­obligation. In particular, the ineffectiveness in Sandra Janković related to the passive and somewhat dismissive approach of the domestic authorities in providing the victim an opportunity to pursue her case, which resulted in the rejection of all her attempts at a private prosecution due to a rigid interpretation of certain procedural rules ordinarily obliging the competent prosecutor.662 In several subsequent cases concerning private violence under Article 8, the ECtHR dealt with the question of correlation between the state-assisted and private prosecutions. In M.S. v. Croatia, concerning private violence between neighbours, the ECtHR rejected the respondent Government’s preliminary objection that the victim, parallel to her private prosecution, had not attempted to have the competent State Attorney’s Office prosecute the case. It held that after the competent criminal court had accepted its competence with regard to the victim’s private prosecution, there had been no reason for the victim to attempt to institute a state-assisted prosecution. Eventually, in the particular circumstances of the case, due to a lack of diligence of the victim’s guardian ad litem to effectively pursue the case, which was accompanied by the failures in promptness and reasonable expedition of the court proceedings, the ECtHR found a violation of the state’s procedural obligation under Article 8.663 The matter of correlation between a state-assisted and private prosecution was finally settled in Remetin v. Croatia (No. 2), where the ECtHR stressed that the procedural obligation under Article 8 concerning acts of private violence might be satisfied either by providing state-assisted prosecution against the attacker or a possibility for the victim to pursue the prosecution of his attacker, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor. In each case, however, the criminal-law mechanism applied must comply with the requirement of effectiveness. In that case, the failure related to, on the one hand, passive approach of the authorities to pursue the public prosecution, and, on the other hand, their reluctance to allow the victim to purse the mechanisms of private prosecution.664 662 ECtHR (Judgment) Sandra Janković v. Croatia, no. 38478/05, 5 March 2009, paras. 50–58. 663 ECtHR (Judgment) M.S. v. Croatia, no. 36337/10, 25 April 2013, paras. 64–67, 79–84. 664 ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, paras. 95–96, 103– 113. See also Remetin v. Croatia (no. 29525/10, 11 December 2012) where the ECtHR held that “[w]here the domestic law afforded the applicant a possibility to pursue the prosecution of his attacker, either as a private prosecutor or as the injured party in the role of a

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However, unlike in cases raising an issue only under Article 8, in those cases where the gravity of the treatment at issue involved concurrent examination under Articles 3 and 8, the ECtHR was not inclined to give the same weight to the possibility of a private prosecution. Indeed, in C.A.S. and C.S. v. Romania, concerning the rape of a child, the ECtHR applied the approach observed above in the analysis of the Denis Vasilyev case according to which, although there may be differences in the authorities’ compliance with the positive obligation depending on whether the case concerns private violence or violence by the authorities, the relevant procedural requirements are nevertheless similar. Accordingly, due to the lack of reasonable expedition of the proceedings, insufficient diligence in identifying all those possibly involved in the case, and the absence of an opportunity for the victim to participate effectively in the proceedings, the ECtHR found a violation of the state’s procedural obligation under Articles 3 and 8.665 The same approach was applied, for instance, in D.J. v. Croatia, also concerning a case of rape, where the lack of effectiveness primarily related to a prejudicial approach of the investigating authorities to the victim’s allegations;666 and in Tyagunova v. Russia, concerning the same matter, where a violation of the authorities’ procedural obligation was found due to the lack of promptness in the investigation and the lack of thoroughness related to the dna evidence and identification parade, similarly to the classical approach in cases under Articles 2 and 3.667 5.3.3 Procedural Obligation in Cases of Negligence The question of the authorities’ procedural response to negligence in their compliance with the procedural obligation primarily arises in the context of medical negligence, although, as follows from Georgel and Georgeta Stoicescu v. Romania, it can have wider implications.668 In Trocellier v. France, the first case in which it addressed the matter, the ECtHR reiterated the general procedural requirement of an effective judicial system in the cases of negligence. The facts of the case suggested that the v­ ictim

665 666 667 668

subsidiary prosecutor, and the applicant has availed himself of this possibility, the Court must examine the effectiveness and the manner in which such criminal-law mechanism was implemented” (emphasis added). ECtHR (Judgment) C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012, paras. 70, 74–83. ECtHR (Judgment) D.J. v. Croatia, no. 42418/10, 24 July 2012, paras. 80, 94–103. ECtHR (Judgment) Tyagunova v. Russia, no. 19433/07, 31 July 2012, paras. 65, 67–74. ECtHR (Judgment) Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, 26 July 2011, para. 52.

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had access to proceedings to establish whether the medical team which performed the operation was liable and enabling her to obtain compensation for personal injury, which led the ECtHR to find that the authorities had satisfied their procedural obligation.669 The same approach was then followed in Benderskiy v. Ukraine.670 It was also applied in Codarcea v. Romania, although in that case, unlike in the two previously cited cases, the ECtHR found a violation of the procedural obligation related to the requirement of reasonable expedition of the criminal proceedings and the impossibility for the victim to recover the amount awarded on account of the medical malpractice.671 Furthermore, it was implied in Csoma v. Romania that the requirements of the procedural obligation concerning negligence under Article 2 were appropriately applicable to such instances examined under Article 8. In ­particular, in Csoma, where the victim had lodged a criminal complaint with the competent state prosecutor alleging medical negligence to which she had attached her civil claim, the ECtHR held that it was an appropriate procedural avenue to pursue. However, a blatant reliance by the prosecutor on a medical expert report without verifying all the conflicting assertions, made this avenue ineffective.672 In S.B. v. Romania, also concerning a medical negligence case where the victim had lodged a criminal complaint to which she had attached her civil claim, the ECtHR explained that the principles concerning the state’s positive obligations under Article 2 were equally applicable to serious interference with the right to physical integrity falling within the scope of Article 8. In that case, the difficulties in obtaining medical expert reports and the inordinate length of proceedings, led to a finding that the available avenue was ineffective.673 6

Article 9 echr (Freedom of Thought, Conscience and Religion)

6.1 Applicability of the Procedural Obligation In general, the freedom of religion under Article 9 consists of the right of an individual to privately maintain his or her religious beliefs according to his or her own conscience, and to freely manifest those religious beliefs. The latter implied aspect of this right is ensured by free participation in the life of a 669 670 671 672 673

ECtHR (Decision) Trocellier v. France, no. 75725/01, 5 October 2006. ECtHR (Judgment) Benderskiy v. Ukraine, no. 22750/02, 15 November 2007, para. 62. ECtHR (Judgment) Codarcea v. Romania, no. 31675/04, 2 June 2009, paras. 102–109. ECtHR (Judgment) Csoma v. Romania, no. 8759/05, 15 January 2013, paras. 41–43, 54–57. ECtHR (Judgment) S.B. v. Romania, no. 24453/04, 23 September 2014, paras. 70–82.

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religious community.674 The state’s role in this respect has to be conducive to ensuring tolerance between different religious groups within the appropriate public order, religious harmony and tolerance in society.675 In exercising that role the state should abstain from any unjustified interference with the freedom of religion under Article 9 and should in some instances, such as with regard to the adverse acts by private parties, take the necessary positive actions to ensure the effective enjoyment of that right to all those within its jurisdiction.676 The right under Article 9 thus gives rise to a twofold obligation of the state: (1) a negative obligation – to abstain from any instances of unjustified interferences; and (2) a positive obligation – to ensure the effective enjoyment of that right to all those within its jurisdiction. The relevancy of the criminal-law mechanisms in this respect lies in the appropriate reaction to religious violence, which seriously affects the guarantees under Article 9 by impeding the possibility for an individual to exercise his or her religious believes. This is particularly true in the case of a large-scale attack on religious liberty where the passivity of the authorities in investigating and prosecuting such occurrences opens the door to a generalisation of religious violence on the territory of a particular state, and suggests tolerance of such a state of affairs on the part of the authorities.677 In other words, in the instance of any activity seriously endangering the right under Article 9, the state should not allow the legislative framework envisaged to secure the effective enjoyment of those rights to remain unenforced. This is important not only in order to secure accountability of those responsible for such occurrences but also to remove any apparent lack of adequate response to violent infringements of the given religious practices.678 6.2 Effectiveness of the Procedural Obligation In the case of Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia the requirement of effective application of criminal-law mechanisms related to securing the effective and free exercise of the religious 674 ECtHR (Judgment) Hasan and Chaush v. Bulgaria [gc], no. 30985/96, 26 October 2000, para. 62. 675 ECtHR (Judgment) Refah Partisi (the Welfare Party) and Others v. Turkey [gc], nos. 41340/98 et al., 13 February 2003, para. 132. 676 ECtHR (Judgment) Eweida and Others v. the United Kingdom, nos. 48420/10 et al., 15 January 2013, para. 84. 677 ECtHR (Judgment) Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007, paras. 133–134. 678 ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, paras. 161–165. See further: un Economic and Social Council, Report of the Special Rapporteur on religious intolerance, E/CN.4/2005/61, 20 December 2004, paras. 48–52.

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beliefs by a religious minority. In particular, a number of members of the religious minority at issue were attacked and seriously physically ill-treated by a group of Christian Orthodox extremists, which met with total indifference and a failure to act on the part of the criminal justice system.679 Similarly, in Begheluri and Others v. Georgia, violent incidents against a religious minority with the direct participation of various public officials or with their connivance and acquiescence, led the ECtHR to conclude that it amounted to an interference with the right under Article 9. This again met with total indifference on the part of the authorities, who failed to investigate and prosecute those responsible. The ECtHR moreover observed that the matter surpassed the mere question of individual responsibility of those involved and that it suggested an apparent lack of an adequate response by the state authorities to the recurring and large-scale violent interference with the minority’s religious rights in violation of Article 9.680 In Karaahmed v. Bulgaria, the ECtHR found that irrespective of a public condemnation of an attack against a Muslim community by demonstrators organised by a Bulgarian political party, an official investigation instituted at the domestic level had fallen short of an effective investigation and prosecution of those responsible, which eventually led to a finding of a violation of Article 9.681 It accordingly follows that the effectiveness of the state authorities’ discharge of their procedural duties under Article 9 in the sphere of criminal-law protection should be measured against the level of diligence and seriousness of their intention to put an end to the occurrences seriously undermining religious freedoms of the group in question. The state is in particular required to investigate and prosecute those responsible for such breaches of human rights, irrespective of some other aspects of social reaction which may be taken in that respect. 7

Article 10 echr (Freedom of Expression)

7.1 Applicability of the Procedural Obligation Similar to other guarantees under the echr, any attack on freedom of expression of a sufficiently severe nature mandating a criminal-law ­protection would, by logical implication, require that such protection be adequately 679 ECtHR (Judgment) Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/01, 3 May 2007, paras. 119, 123–124, 133–134. 680 ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, para. 164. 681 ECtHR (Judgment) Karaahmed v. Bulgaria, no. 30587/13, 24 February 2015, para. 110.

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e­ ffectuated by an effective investigation and prosecution of those responsible for such breaches of human rights. The concept of criminal-law protection of freedom of expression under Article 10 was first developed in Özgür Gündem v. Turkey concerning violent attacks on a newspaper publisher allegedly with the state authorities’ acquiescence or connivance. Specifically, the ECtHR observed numerous incidents of violence, including killings, assaults and arson attacks, involving the newspaper, journalists and others related to it, which could not be directly attributed to the state authorities, although there were indications that such a violent campaign was tolerated, and even perhaps approved, by the state.682 In these circumstances the ECtHR relied on the concept of positive obligations in construing the duty of the state authorities to take the necessary preventive and procedural measures related to such attacks against the freedom of expression. This is because the genuine and effective exercise of this freedom could not be achieved without the application of positive measures of protection even in the sphere of relations between individuals, and without the necessary interference by the state.683 It should be noted, however, that in Yaşa v. Turkey, a case preceding Özgür Gündem v. Turkey, involving the killing and an attempted murder of two individuals allegedly associated with a business involving the selling of Özgür Gündem newspapers, after having found a violation of the procedural obligation under Article 2, the ECtHR considered that no separate issue remained to be examined under Article 10, given that all the relevant facts and legal arguments had been subsumed by the findings under Article 2.684 The same approach was followed in Kiliç v. Turkey,685 and in the context of Article 3 in Uzeyir Jafarov v. Azerbaijan.686 It thus follows that the question of criminal-law protection under Article 10 is secondary, and even consumed, by the requirement of effective protection of the substantive echr rights of a more fundamental nature, such as the right to life or prohibition of torture. 7.2 Effectiveness of the Procedural Obligation The approach in Yaşa v. Turkey and Kiliç v. Turkey, under which the same facts relevant in the assessment of Article 2 subsume the relevant considerations 682 683 684 685 686

ECtHR (Judgment) Özgür Gündem v. Turkey, no. 23144/93, 16 March 2000, paras. 40–41. Ibid., paras. 42–43. ECtHR (Judgment) Yaşa v. Turkey, no. 22495/93, 2 September 1998, paras. 108 and 120. ECtHR (Judgment) Kiliç v. Turkey, no. 22492/93, 28 March 2000, paras. 83 and 87. ECtHR (Judgment) Uzeyir Jafarov v. Azerbaijan, no. 54204/08, 29 January 2015, para. 71.

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under Article 10 suggests that, in the circumstances, the procedural obligation does not differ in its qualitative or quantitative requirements when referring to the same set of facts that, strictly speaking, could fall under different provisions of the echr. This could also be observed in Özgür Gündem v. Turkey, in which the ECtHR specifically analysed the procedural obligation of criminal investigation and prosecution under Article 10. In particular, the ECtHR stressed the need for an ex officio reaction of the domestic authorities from the moment they had become aware of the violence against the newspaper publisher and its staff. It also found that separate sets of criminal investigations into the particular occurrences of violence were not sufficient and that the matter should have been addressed systematically. These failures undermined the effectiveness of such procedural response to the newspaper publisher’s particular complaints.687 If these considerations in Özgür Gündem v. Turkey were to be systematised in the specific categories of effectiveness, detailed under Articles 2 and 3, then it should be noted that there were two aspects of ineffectiveness relevant in finding of a violation of Article 10 in that case. Firstly, the proceedings were not instituted sufficiently diligently from the moment that the problem of violence had been brought to the attention of the state authorities, and secondly, individual criminal investigations were not an appropriate procedural avenue for addressing allegations of more related instances of coordinated violence. 8

Article 11 echr (Freedom of Assembly and Association)

8.1 Applicability of the Procedural Obligation The concept of positive obligations in the context of Article 11 was first devised in the case of Plattform “Ärzte für das Leben” v. Austria where the ECtHR stressed that the states should ensure that participants in a protest are able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents. Accordingly, in order to secure genuine and effective freedom of peaceful assembly, the states are required to take positive measures, including in relations between private individuals.688 Drawing inferences from the structure and scope of the positive obligations under Article 10 construed in the case of Özgür Gündem v. Turkey, in the case of Ouranio Toxo and Others v. Greece, the ECtHR stressed that in cases of 687 ECtHR (Judgment) Özgür Gündem v. Turkey, no. 23144/93, 16 March 2000, para. 44. 688 ECtHR (Judgment) Plattform “Ärzte für das Leben” v. Austria, no. 10126/82, 21 June 1988, para. 32.

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i­ nterference with freedom of association by acts of individuals, the competent authorities have an additional obligation to take effective investigative measures.689 The same principle was applied in Promo Lex and Others v. the Republic of Moldova with regard to freedom of assembly in the context of a violent attack against demonstrators by several private persons.690 8.2 Effectiveness of the Procedural Obligation In Ouranio Toxo and Others v. Greece the ECtHR reproached the domestic authorities for not instituting an ex officio investigation into a violent attack against the political party.691 In Promo Lex and Others v. the Republic of Moldova the ECtHR observed, in particular, that despite all the attackers against the demonstrators having been identified, several of them had never been prosecuted and convicted. Moreover, the thoroughness of the investigation was undermined by the failure of the domestic authorities to investigate the background to the case, namely an allegation that the attackers had received payments to carry out the attack.692 9

Article 14 echr (Prohibition of Discrimination)

9.1 Applicability of the Procedural Obligation In the landmark case of Nachova and Others v. Bulgaria concerning racially motivated violence endangering the right to life, the ECtHR observed that a possible discriminatory motive of an act endangering one of the substantive provisions of the echr gave rise not only to the procedural obligation to investigate the existence of such motives under the substantive right at issue but might also be seen as an implicit requirement under Article 14, taken in conjunction with the relevant substantive right, guaranteeing protection from discrimination.693 In reaching that conclusion the ECtHR reiterated that the 689 ECtHR (Judgment) Ouranio Toxo and Others v. Greece, no. 74989/01, 20 October 2005, para. 43. 690 ECtHR (Judgment) Promo Lex and Others v. the Republic of Moldova, no. 42757/09, 24 February 2015, para. 23. 691 ECtHR (Judgment) Ouranio Toxo and Others v. Greece, no. 74989/01, 20 October 2005, paras. 41–43. 692 ECtHR (Judgment) Promo Lex and Others v. the Republic of Moldova, no. 42757/09, 24 February 2015, para. 27. 693 ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 161.

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procedural response to the racially induced acts of violence should reassert society’s condemnation of racism and ethnic hatred and maintain the confidence of minorities in the ability of the authorities to protect them from such violence.694 Consequently, in the event of indications of racially motivated violence, the state authorities have an additional duty to take all reasonable steps to elucidate the racist motive and to establish whether hatred or prejudice played a role in the events. Any failures in examining that additional element of a violent attack would mean ignoring the specific nature of the acts that are “particularly destructive of fundamental rights,” which would be irreconcilable with Article 14. It therefore follows that the domestic systems are required to secure recognition and normative distinctness of racially motivated violence in the relevant legal frameworks and practice.695 These considerations are not limited only to instances of racial discrimination696 but may also extend to any other form of discriminatory motives, such as those of a religious,697 gender,698 occupational,699 political nature,700 or related to sexual orientation.701 Moreover, the obligation under Article 14 to

694 Ibid., para. 160; ECtHR (Decision) Menson v. the United Kingdom, no. 47916/99, 6 May 2003. 695 ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 160. See further, ECtHR (Judgment) Cobzaru v. Romania, no. 48254/99, 26 July 2007, paras. 97–101; ECtHR (Judgment) Petropoulou-Tsakiris v. Greece, no. 44803/04, 6 December 2007, paras. 61–66; ECtHR (Judgment) Seidova and Others v. Bulgaria, no. 310/04, 18 November 2010, para. 790; ECtHR (Judgment) Abdu v. Bulgaria, no. 26827/08, 11 March 2014, paras. 25–31. 696 See further on the questions related to the application of criminal-law mechanisms in combating racial discrimination: D. Caccamisi, “Quand «faire que ce qui est juste soir plus fort» conduit à paralyser la lutte contre la discrimination raciale … Vers une dépénalisation partielle de la discrimination raciale?” in Y. Cartuyvels, H. Dumont, F. Ost, M. van de Kerchove and S. van Drooghenbroeck (eds.), Les droits de l’homme, bouclier ou épée du droit pénal? (Brussels, Bruylant 2007), pp. 427–495. 697 ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, paras. 171–179. 698 ECtHR (Judgment) Eremia v. the Republic of Moldova, no. 3564/11, 28 May 2013, paras. 85– 90; ECtHR (Judgment) Mudric v. the Republic of Moldova, no. 74839/10, 16 July 2013, para. 60–64. 699 ECtHR (Judgment) B.S. v. Spain, no. 47159/08, 24 July 2012, paras. 58–62. 700 ECtHR (Judgment) Virabyan v. Armenia, no. 40094/05, 2 October 2012, para. 223. 701 ECtHR (Judgment) Identoba and Others v. Georgia, no. 73235/12, 12 May 2015, para. 67; ECtHR (Judgment) M.C. and A.C. v. Romania, no. 12060/12, 12 April 2016, para. 111.

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investigate a discriminatory motive equally arises in the cases of human rights offences committed by state officials and private individuals.702 As defects in the investigation of a possible discriminatory element in an act of violence or life-threatening situation may lead to a finding of the authorities’ failure to comply with the procedural obligation under the applicable substantive provision,703 a separate issue under Article 14 will not necessarily arise in every case.704 Indeed, it appears from the ECtHR case-law that a separate examination will be necessary when the discriminatory aspect is a distinctive element of the case or a prevailing moment determining all other relations that give rise to an issue under the echr. One of the distinctive questions of applicability of the procedural obligation under Article 14 echr is the problem of a proper identification of discriminatory elements or motives in the occurrence of a human rights offence. In Nachova and Others v. Bulgaria the obligation to investigate the racial motive of a police killing of two Roma persons arose from a witness statement implying hostility towards Roma by one of the state agents who used lethal force and from the overall anti-Roma sentiment in the country at the time.705 However, reports of a general discriminatory sentiment in the county, observed as one of the elements in Nachova, were not in themselves sufficient to trigger the authorities’ responsibility under Article 14 in Ognyanova and Choban v. Bulgaria. In that case, in the absence of specific indications of racial prejudice, the ECtHR found no violation of Article 14 taken in conjunction with Articles 2, 3, 5 and 13.706 Moreover, not every indication of racial bias, in the absence of a general discriminatory context, would trigger the authorities’ procedural obligation under Article 14.707 For instance, in Beganović v. Croatia, the ECtHR observed that the fact that one of the assailants on the victim had made a reference to his ethnic Roma origin did not indicate a discriminatory motive since it had been well-established on the facts of the case that the motive for the 702 ECtHR (Judgment) Angelova and Iliev v. Bulgaria, no. 55523/00, 26 July 2007, para. 115. 703 See further: ECtHR (Judgment) Sakir v. Greece, no. 48475/09, 24 March 2016, para. 72. 704 See for example: ECtHR (Judgment) Dündar v. Turkey, no. 26972/95, 20 September 2005, para. 104 and the dissenting opinion of Judge Mularoni. 705 ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, para. 163. 706 ECtHR (Judgment) Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006, paras. 146–147. 707 ECtHR (Judgment) Vasil Sashov Petrov v. Bulgaria, no. 63106/00, 10 June 2010, para. 72.

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violent attack had been revenge by a group of persons belonging to the same circle of friends.708 In the identification of discriminatory elements or motives of an offence, the concrete complaints made by the victim in the course of domestic proceedings may be of particular relevance.709 In Virabyan v. Armenia, the obligation to investigate possible political motives in the ill-treatment of the victim arose notably on the basis of his consistent complaints to that effect.710 It was also one of the central factors, accompanied by other information on religiously motivated violence, leading to the violation of Article 14 in conjunction with Articles 3 and 9 in Begheluri and Others v. Georgia.711 On the other hand, in Opuz v. Turkey unchallenged statistical information accompanied by various other reports led the ECtHR to conclude that there was a “prima facie indication that the domestic violence affected mainly women and that the general and discriminatory judicial passivity in Turkey created a climate that was conducive to domestic violence.”712 In the context of overall ineffectiveness of judicial protection of the victims of domestic violence, the ECtHR found a violation of Article 14 in conjunction with Articles 2 and 3.713 Further examples include the case of Bekos and Koutropoulos v. Greece where the ECtHR held that the procedural obligation to investigate allegedly racial motives of police violence had arisen on the basis of the reports of various international organisations and allegations made by civil society organisations within the country.714 Similarly, in Cobzaru v. Romania, even in the absence of prima facie evidence of hatred-induced violence, the general social problem of violence against Roma, which was notably well reported in the media, required an investigation into the possible racist motives of police violence.715 It could be also observed in this connection that in Milanović v. Serbia, ­concerning a violent attack by a group of persons belonging to far-right 708 ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, para. 97. See further: ECtHR (Judgment) Soare and Others v. Romania, no. 24329/02, 22 February 2011, para. 208. 709 ECtHR (Judgment) Karagiannopoulos v. Greece, no. 27850/03, 21 June 2007, para. 78; ­ECtHR (Judgment) Mizigarova v. Slovakia, no. 74832/01, 14 December 2010, para. 122. 710 ECtHR (Judgment) Virabyan v. Armenia, no. 40094/05, 2 October 2012, para. 223. 711 ECtHR (Judgment) Begheluri and Others v. Georgia, no. 28490/02, 7 October 2014, paras. 174–179. 712 ECtHR (Judgment) Opuz v. Turkey, no. 33401/02, 9 June 2009, paras. 192–198. 713 Ibid., paras. 199–201. 714 ECtHR (Judgment) Bekos and Koutropoulos v. Greece, no. 15250/02, 13 December 2005, ­paras. 72–73. 715 ECtHR (Judgment) Cobzaru v. Romania, no. 48254/99, 26 July 2007, paras. 96–97.

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o­ rganisations against a member of the Hare Krishna religious community, the ECtHR held that the fact that the attackers belonged to a far-right organisation in itself suggested that “most probably [the attack had] been motivated by religious hatred,” which triggered the authorities procedural obligation under Article 14 in conjunction with Article 3.716 The same wording was used in Šečić v. Croatia concerning an instance of violence by a group of skinheads against a Roma person which, due to the fact that it was “most probably induced by ethnic hatred,” called for an investigation into the discriminatory element.717 9.2 Effectiveness of the Procedural Obligation In Menson v. the United Kingdom, one of the first cases raising a clear issue of discriminatory motives of human rights offences, the ECtHR stressed the need for particular vigilance in terms of the authorities’ compliance with the requirement of effectiveness of the procedural obligation. In particular, it held that where an attack is racially motivated, “it is particularly important that the investigation is pursued with vigour and impartiality” so as to secure a proper “society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.”718 The vast majority of cases where the ECtHR found a violation of the national authorities’ compliance with the procedural obligation under Article 14 echr concerned the authorities’ failure to recognise the necessity of investigating and prosecuting the distinctive discriminatory element of a particular human rights offence. In Nachova and Others v. Bulgaria an apparent lack of thoroughness of the investigation, leaving the possible racial motives behind the killing of two Roma persons fully unverified, led to a violation of Article 14 in conjunction with Article 2.719 Similarly, a total absence of any investigative measures in respect of a case of ethnically motivated life-threatening arson led to a violation of Article 14 in conjunction with Article 2 in Fedorchenko and Lozenko v. Ukraine.720 716 717 718 719

ECtHR (Judgment) Milanović v. Serbia, no. 44614/07, 14 December 2010, para. 99. ECtHR (Judgment) Šečić v. Croatia, no. 40116/02, 31 May 2007, paras. 68–69. ECtHR (Decision) Menson v. the United Kingdom, no. 47916/99, 6 May 2003. ECtHR (Judgment) Nachova and Others v. Bulgaria [gc], nos. 43577/98 and 43579/98, 6 July 2005, paras. 163–167. 720 ECtHR (Judgment) Fedorchenko and Lozenko v. Ukraine, no. 387/03, 20 September 2012, para. 69. See further: ECtHR (Judgment) Yotova v. Bulgaria, no. 43606/04, 23 October 2012, para. 110.

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Such absence of any action taken with regard to the allegations related to the victim’s race and her occupation also led to a violation of Article 14 in conjunction with Article 3 in B.S. v. Spain.721 The same omission was the reason for the finding of a violation of Article 14 in conjunction with Article 3 in Virabyan v. Armenia concerning allegations of politically motivated violence.722 In addition to the instances of a complete failure to recognise discriminatory elements of an offence, the shortcomings in effectiveness sometimes relate to the particular procedural aspects of the investigation and prosecution, already observed above with regard to other provisions of the echr. In Angelova and Iliev v. Bulgaria, for instance, an issue of effectiveness of the procedural obligation arose with regard to the requirement of thoroughness, namely the failure of the authorities to charge the assailants with racially motivated offences, but also in respect of the lack of promptness and reasonable expedition of the proceedings, which notably for most of the assailants terminated at the investigation stage by prescription.723 In Abdu v. Bulgaria the problem of thoroughness also arose with regard to the failure to question the eyewitnesses to the events.724 The failure with regard to the lack of promptness and reasonable expedition, accompanied by the authorities’ apparent dismissive approach to the case, was also observed as one of the procedural failures in Milanović v. Serbia.725 Similarly, seven years without taking any serious action with a view to identifying or prosecuting the perpetrators was the central reason for the finding of a violation of Article 14 in conjunction with Article 3 in Šečić v. Croatia.726 In Bekos and Koutropoulos v. Greece the effectiveness of the investigation was undermined by the failure to verify the relevant contextual background to the allegations of racially motivated violence by the police, in particular the possible previous racist and prejudicial conduct of the police officer concerned.727 That was also the case in Cobzaru v. Romania728 and Petropoulou-Tsakiris v. Greece,729 which were further aggravated by the dismissive and discriminatory 721 722 723 724 725 726 727

ECtHR (Judgment) B.S. v. Spain, no. 47159/08, 24 July 2012, paras. 61–62. ECtHR (Judgment) Virabyan v. Armenia, no. 40094/05, 2 October 2012, para. 224. ECtHR (Judgment) Angelova and Iliev v. Bulgaria, no. 55523/00, 26 July 2007, paras. 116–117. ECtHR (Judgment) Abdu v. Bulgaria, no. 26827/08, 11 March 2014, para. 34. ECtHR (Judgment) Milanović v. Serbia, no. 44614/07, 14 December 2010, paras. 99–100. ECtHR (Judgment) Šečić v. Croatia, no. 40116/02, 31 May 2007, para. 69. ECtHR (Judgment) Bekos and Koutropoulos v. Greece, no. 15250/02, 13 December 2005, para. 74. 728 ECtHR (Judgment) Cobzaru v. Romania, no. 48254/99, 26 July 2007, paras. 98–100. 729 ECtHR (Judgment) Petropoulou-Tsakiris v. Greece, no. 44803/04, 6 December 2007, paras. 64–65.

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speech of the investigative authorities with regard to the possible victims of racially motivated violence.730 10

Article 1 of Protocol No. 1 to the echr (Protection of Property)

10.1 Applicability of the Procedural Obligation Similar to other provisions within the echr system of protection of human rights, Article 1 of Protocol No. 1 “does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions.”731 This means, particularly in the context of infringements of the property rights by private individuals, that such rights must be sufficiently protected by law and that the victims must have adequate remedies at their disposal to vindicate those rights. When the infringements of the property rights are of a criminal nature, the procedural obligation will in principle require, similarly to Articles 2 and 3, an official effective investigation and prosecution of those responsible.732 Nevertheless, the procedural obligation in such instances may also be satisfied if the victim had an effective remedy in the civil courts capable of vindicating his or her property rights. However, this would be accepted as a viable alternative only if securing the protection of the property rights through a civil action, even if criminal proceedings have not been brought to a successful conclusion, had reasonable prospects of success. Certainly, the mere fact that a criminal prosecution has not resulted in a conviction would not suffice to say that the civil action was thereby prejudiced. The state would fall foul of its procedural obligation only if the lack of prospect of success of the civil action were prejudiced as a “direct consequence of exceptionally serious and flagrant deficiencies in the conduct of criminal proceedings arising out of the same set of facts.”733 730 See further: ECtHR (Judgment) Stoica v. Romania, no. 42722/02, 4 March 2008, paras. 128–132; ECtHR (Judgment) Turan Cakir v. Belgium, no. 44256/06, 10 March 2009, para. 80; ECtHR (Judgment) Makhashevy v. Russia, no. 20546/07, 31 July 2012, para. 178; ECtHR (Judgment) Antayev and Others v. Russia, no. 37966/07, 3 July 2014, para. 128. 731 ECtHR (Judgment) Öneryıldız v. Turkey [gc], no. 48939/99, 30 November 2004, para. 134. 732 ECtHR (Judgment) Blumberga v. Latvia, no. 70930/01, 14 October 2008, para. 67. 733 Ibid., para. 68. See further: ECtHR (Judgment) Zagrebačka banka d.d. v. Croatia, no. 39544/05, 12 December 2013, paras. 267–277.

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However, the above principles should be distinguished from cases of interference with the property rights resulting from the deliberate destruction of property by the agents of the state. The ECtHR has held that in such instances the requirement for an effective procedural response thorough the use of criminal-law remedies would apply with full stringency. Consequently, an adequate procedural response would require an effective criminal investigation and prosecution of those responsible.734 10.2 Effectiveness of the Procedural Obligation The question of effectiveness in Blumberga v. Latvia, in which the ECtHR developed the concept of an adequate procedural response in the sphere of criminal-law remedies concerning the instances of ordinary property crime – specifically in Blumberga a burglary – related to a protracted length of criminal investigations into the events. One investigation, which had begun more than thirteen years earlier, was at the time still ongoing, whereas another had terminated after more than ten years without any results. However, the ECtHR did not consider it established that the failure to bring the criminal proceedings to a successful conclusion was the result of flagrant and serious deficiencies in the authorities’ conduct. Moreover, given that it did not impede an effective possibility to bring civil proceedings concerning the events, the ECtHR found no violation of the authorities’ procedural obligation.735 In this respect it should also be observed that the ECtHR did not find any flagrant and serious deficiencies of the authorities’ procedural response in Keipenvardeca v. Latvia where the criminal proceedings for burglaries, to which the victims attached their civil action, had lasted approximately four years and ended in the conviction of the perpetrator and award of damages.736 Similarly, in Zagrebačka banka d.d. v. Croatia, concerning a rather complex case of distribution of property in bankruptcy proceedings, the ECtHR did not consider that in the criminal proceedings which had been discontinued owing to the death of the suspect there existed any failures that could reach the Blumberga threshold of flagrant and serious deficiencies. This was all the more so given that there was nothing to prevent the applicant bank from resorting to a civil avenue of redress.737 734 ECtHR (Decision) Çaçan v. Turkey, no. 33646/96, 28 March 2000; ECtHR (Judgment) Khamzayev and Others v. Russia, no. 1503/02, 3 May 2011, para. 154; ECtHR (Judgment) Miltayev and Meltayeva v. Russia, no. 8455/06, 15 January 2013, para. 47. 735 ECtHR (Judgment) Blumberga v. Latvia, no. 70930/01, 14 October 2008, paras. 71–72. 736 ECtHR (Decision) Keipenvardecas v. Latvia, no. 38979/03, 2 March 2010, paras. 61–64. 737 ECtHR (Judgment) Zagrebačka banka d.d. v. Croatia, no. 39544/05, 12 December 2013, ­paras. 277.

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It follows from these instances in the ECtHR case-law concerning ordinary property crime that the application of criminal-law mechanisms plays the central role in the assessment of the authorities’ compliance with the procedural obligation since the relevancy of civil remedies comes into focus only after it has been ascertained that their use was not impaired by the ineffective criminal investigation and prosecution. However, at the same time, the Blumberga threshold of flagrant and serious deficiencies is extremely high and would require particularly strong indications of ineffectiveness of the use of criminal law remedies in order to raise an issue of the authorities’ compliance with their procedural obligation under Article 1 of Protocol No. 1. On the other hand, as already observed above, in cases of unlawful deliberate destruction of property by the state agents, principally the state security forces, an effective procedural response requires an official investigation and, if appropriate, prosecution of those responsible. The requirement of effectiveness of such a procedural response is similar to the requirements of effectiveness of the procedural obligation under Articles 2 and 3. For instance, in Miltayev and Meltayeva v. Russia, the ECtHR reproached the domestic authorities’ lack of diligence in conducting the investigative actions into unlawful destruction of property, which led to the prescription of criminal responsibility without the establishment of the relevant circumstances of the case, such as the identity of the military unit involved in the destruction of property.738 Similarly, in several Turkish cases where the procedural obligation was examined in the context of the right to an effective remedy under Article 13 echr, the ECtHR observed very specific aspects of effectiveness of the measures taken by the domestic authorities to investigate the case. In Altun v. ­Turkey the ECtHR held that an investigation conducted by the prosecutor was limited in scope, which prevented the taking of some crucial procedural steps such as an on-site inspection at the scene of the incident, and the questioning of potential witnesses or the members of security forces who had allegedly been involved in the incident. These failures afterwards resulted in transfer of the case to a competent administrative council which, according to the well-established case-law of the ECtHR, lacked the requisite independence. In these circumstances, the ECtHR considered that the investigation into the destruction of property by the security forces lacked thoroughness and independence.739 The same deficiencies in the investigation undermining the effectiveness of the authorities’ procedural response were, for instance, observed in Hasan İlhan v. Turkey.740 738 ECtHR (Judgment) Miltayev and Meltayeva v. Russia, no. 8455/06, 15 January 2013, para. 48. 739 ECtHR (Judgment) Altun v. Turkey, no. 24561/94, 1 June 2004, paras. 73–75. 740 ECtHR (Judgment) Hasan İlhan v. Turkey, no. 22494/93, 9 November 2004, paras. 124–126.

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11 Conclusion It follows from the preceding analysis that the ECtHR has developed a particular law on the states’ duty to investigate and, if appropriate, prosecute and punish human rights offences. In the context of the general methodological approach applied in this study, the relevant minimum standards of this duty could be accordingly differentiated as questions of applicability and effectiveness of the procedural obligation. 11.1 Applicability of the Procedural Obligation As a general rule, it could be said that whenever a particular fundamental facet of an echr right either in itself or owing to the gravity of its infringement requires the substantive criminal-law protection as ultima ratio societas, the procedural obligation arises as an intrinsic requirement of the enforcement of such protection. It is essentially a matter of an effective application of the procedural mechanisms within the overall framework of the requisite criminallaw protection. In the context of applicability, the procedural criminal-law mechanisms exist either as a requirement of “an official investigation,” or some other procedural avenues may be envisaged under the concept of “an effective judicial system.” The assessment depends on the question whether the criminal procedure is the only appropriate procedural avenue for the breach of a right at issue. 11.1.1

Applicability of Criminal-Law Mechanisms as the Requirement of an Official Investigation The requirement of an official investigation comes into play under Article 2 echr (right to life) as the appropriate procedural response in respect of: (1) killings by state agents; (2) deaths related to wide-scale operations of military and security forces; (3) enforced disappearances; (4) deaths in custody and state institutions; (5) suspicious suicides; (6) deaths caused by hazards which are not of a purely accidental nature; (7) road accidents in suspicious circumstances; (8) medical negligence in prisons; (9) killings by private parties; and (10) other suspicious deaths.741 Under Article 3 echr (prohibition of torture) the requirement of an official investigation exists in cases of: (1) ill-treatment by state authorities; (2) private violence; (3) gross negligence; and (4) alleged medical negligence in a detention context.742 741 See supra 4.2.1. 742 See supra 4.2.2.

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The applicability of criminal-law mechanisms under Article 4 echr (prohibition of slavery and forced labour) as a requirement of an official investigation relates to: (1) human trafficking; (2) sexual abuse and forced labour; and (3) domestic servitude.743 Under Article 5 echr (right to liberty and security) an official investigation is required in cases of: (1) unacknowledged detentions; and (2) secret renditions.744 When the applicable aspect of Article 8 echr (right to respect for private and family life) comes into play, the requirement of an official investigation ­applies with regard to: (1) serious attacks of any form on the physical and ­psychological integrity of an individual (in particular: rape; sexual abuse; paedophilia; other violent attacks leaving physical injuries; domestic violence); (2) serious infringements of the amenity of home; (3) serious instances of harassment of a family; and (4) unjustified disclosures of information of a private nature (correspondence).745 In the context of Article 9 echr (freedom of thought, conscience and religion) criminal-law mechanisms must apply as a requirement of an official investigation with regard to any activity seriously endangering the rights enumerated under Article 9 echr.746 The concept of criminal-law protection of the freedom of expression under Article 10 echr also requires an official investigation in respect of any violent attack against a newspaper publisher or those performing the tasks of journalists.747 Similarly, Article 11 echr sets out the requirement for an effective procedural response to violent attacks on those exercising freedom of assembly.748 Lastly, Article 14 echr (prohibition of discrimination) requires the domestic authorities to set in motion an official investigation so as to elucidate any possible discriminatory motive of an act endangering one of the substantive provisions of the echr.749

743 See supra 4.3. 744 See supra 4.4. 745 See supra 4.5. 746 See supra 4.6. 747 See supra 4.7. 748 See supra 4.8. 749 See supra 4.9.

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11.1.2 The Requirement of an Effective Judicial System Criminal-law mechanisms form part of a wider requirement of an effective judicial system under Article 2 echr (right to life) in the case of: (1) deaths caused by hazards of a purely accidental nature; (2) ordinary road accidents; (3) medical negligence; and (4) deaths and life-threatening situations caused by the state agents or private parties by pure negligence.750 In the context of Article 3 echr (prohibition of torture) criminal-law mechanisms apply as a requirement of an effective judicial system with regard to: (1) medical negligence; and (2) medical negligence in the context of psychiatric internment.751 Similar to Articles 2 and 3 echr, under Article 5 echr (right to liberty and security) criminal-law mechanisms apply as a requirement of an effective judicial system in the case of an internment where the alleged irregularity of the conduct was of a negligent nature.752 Under Article 8 echr (right to respect for private and family life) the ­criminal-law mechanisms apply in the wider context of an effective judicial system in cases involving negligence. A particularity concerning the procedural obligation under Article 8 echr relates to the instances of private violence where the states may meet their obligations by providing adequate and effective criminal-law mechanisms enabling the victim to pursue his or her private prosecution in the competent courts.753 Similarly, a complex construction of the requirement of applicability of the procedural obligation exists in the context of Article 1 of Protocol No. 1 (protection of property). As a rule, when infringements of property rights are of a criminal nature, the procedural obligation will in principle require an official investigation. However, the procedural obligation in such instances may also be satisfied through the existence of an effective remedy in the civil courts capable of vindicating the victim’s property rights. This would be accepted as a viable alternative only if securing the protection of property rights through a civil action would have reasonable prospects of success, irrespective of the fact that the criminal proceedings have not been brought to a successful conclusion.754

750 See supra 4.2.1. 751 See supra 4.2.2. 752 See supra 4.4. 753 See supra 4.5. 754 See supra 4.10.

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11.2 Effectiveness of the Procedural Obligation The most complex and elaborated standards of effectiveness of the procedural obligation in the ECtHR case-law are developed under Articles 2 and 3 echr. Given that these standards, as we have seen, are capable of informing the procedural obligation under other echr provisions, they could be presented as the primary means of assessing the effectiveness of the procedural obligation under the echr. Conceptually, they may be structured in the following manner. Ascertaining the Appropriate Procedural Avenue755 In general, the criminal-law remedy capable of implementing the substantive criminal-law protection of a right is the appropriate procedural avenue. As a rule, this applies to any wilful action or any omission (other than those associated with pure negligence) by state agents or private parties. However, civil remedies (and in some instances administrative) have relevance in the search for an appropriate procedural avenue when a human rights offence has occurred by pure negligence without any aggravating circumstances. In each case, it must be assessed whether the civil remedies operated in practice within a time-span such that the courts can complete their examination of the merits of each individual case. It must also be born in mind that in some instances criminal proceedings have a restricted scope of review and therefore, for answering some matters such as the general questions surrounding the use of weapons by state agents, criminal proceedings will have to be supplemented by, for example, an appropriate administrative inquiry capable of elucidating such aspects of the case. Any form of investigation, or aggregate of investigative avenues, which could eventually secure a prosecution in respect of any criminal offence which may be disclosed, under the presumption of their compliance with other requirements of applicability and effectiveness, would fall under the concept of an effective investigation. The assessment of effectiveness of the procedural obligation encompasses: (1) any pre-trial investigation; (2) proceedings before the competent courts at all levels of jurisdiction; (3) the imposition of sanctions; and (4) the enforcement of sanctions. As a rule, the procedural obligation requires the ex officio institution and conduct of the proceedings by the competent state authorities.

755 See supra 4.2.3.1.

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Specialised jurisdictions, such as military justice, are not in themselves incompatible with the requirements of the echr but they must meet the general applicable standards developed in the ECtHR case-law. In cases with transnational elements, the jurisdictional scope required by the procedural obligation could be drawn from the general rules on the echr jurisdiction. In terms of criminal jurisdiction, this corresponds to: (1) the principle of territoriality, irrespective whether it relates to the internationally recognised territory of the state or a territory on which it exercises effective control, including onboard craft and vessels registered in, or flying the flag of, that state; and (2) the “qualified” active personality principle – actions (or possibly omissions) of state agents out of the state’s territory, excluding the actions or omissions of private parties who might be nationals of the state at issue, unless they act under the acquiescence or instigation by the authorities. Passive personality and the principle of universality do not find their correlates in the general jurisdictional rules under the echr. However, as a rule, a state would be bound to comply with the requirements of the procedural obligation once it has decided to assert its jurisdiction over the prosecution for the reasons not related to the echr. Otherwise, the jurisdiction of the state could arise only in the case of special features. These are, generally, the existence of practical competence or a legal authority to investigate and prosecute a human rights offence, including the duty to pursue mechanisms of international cooperation in criminal matters. In addition, the victim should be in a position to invoke his or her rights under the echr, which essentially confines the matter to the echr espace juridique. Institution of Proceedings756 Where the procedural obligation must be engaged as a requirement of an effective judicial system, the relevant procedures must be instituted upon the initiative of the individual concerned and the state authorities’ obligation in this respect is limited to providing an effective procedural mechanism by which the relevant procedures could be effectively instituted and later on conducted. When the procedural obligation is a requirement for an effective official investigation, the procedure must be instituted from the moment the domestic authorities, by any means whatsoever, learn about the case. This essentially concerns two instances: (1) the submission of a complaint raising a “credible assertion” or “arguable claim” of a human rights offence; or, in the absence of such a complaint, (2) whenever there are other “sufficiently clear indications” that an infringement of the echr rights might have occurred. 756 See supra 4.2.3.2.

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The Requirement of Independence and Impartiality757 As a rule, all those responsible for and carrying out the investigation must be independent and impartial with regard to those implicated in the events. Such independence and impartiality must exist in law and practice and must encompass: (1) lack of hierarchical or institutional connection with those implicated in the events; and (2) practical independence. Public Scrutiny of the Proceedings and Victim Participation758 The question of public scrutiny of the proceedings relates to the assessment of whether there is a sufficient element of public access to an investigation or its results so as to secure accountability in practice as well as in theory, and to maintain public confidence in the authorities’ adherence to the rule of law, as well as preventing any appearance of collusion in or tolerance of unlawful acts. Effective victim participation contains a participative limb, related to the requirement of securing the victims’ involvement in the investigative process; and a functional limb, related to providing mechanisms for challenging the public authorities’ decisions not to prosecute. With regard to the participative limb, a wide margin is left to the competent authorities in the assessment of the victim’s appropriate level of involvement in the proceedings. However, under the functional limb, there is no flexibility in the duty to inform the victim of the existence of the proceedings and allowing him or her the possibility to participate and, if necessary, challenge the decision not to prosecute. Promptness and Reasonable Expedition of the Proceedings759 The requirement of promptness and reasonable expedition implies that in their compliance with the procedural obligations the authorities are required: (1) to institute the appropriate proceedings without any delay; (2) to conduct the relevant actions with a reasonable pace; and (3) to terminate the proceedings within a reasonable time.

Thoroughness of the Proceedings: Effectiveness in Narrow Sense760 The most complex aspect of effectiveness is the requirement of thoroughness of the proceedings, which finds its relevance at the investigation stage of the proceedings and at trial. The compliance with the requirement 757 See supra 4.2.3.3. 758 See supra 4.2.3.4. 759 See supra 4.2.3.5. 760 See supra 4.2.3.6.

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of ­thoroughness is determined by the circumstances of a particular case, although in its case-law the ECtHR has identified certain minimum standards of effectiveness in the application of the relevant procedural actions. In the context of the investigation stage this relates to: (1) the necessity to identify an appropriate model of investigation; (2) diligence in identifying those implicated in the events: suspects, witnesses and victims, and in securing their questioning; (3) a proper inspection of the crime scene and seizure of the relevant evidence; (4) diligence in commissioning and obtaining of autopsy reports or other related evidence from the forensic experts; (5) an appropriate commissioning and obtaining of the ballistic and other expert evidence; (6) diligence in collecting the relevant documents; (7) a proper reconstruction of the events; and (8) abstention from hasty conclusions and the creation of injudicious pre-concluded hypotheses of the events. In the context of the trial stage of the proceedings, the requirement of thoroughness relates to: (1) the duty to ascertain the identity or whereabouts of witnesses during the trial; (2) an appropriate commissioning and obtaining of the relevant expert evidence; (3) the taking of all necessary evidentiary actions in the assessment of the relevant facts; (4) compliance with the general requirements of a fair trial; (5) securing an appropriate and effective forum for a private prosecution; (6) securing appropriate punishment; and (7) the provision of reasonable and convincing findings and conclusions.

chapter 5

The Concept of Procedural Obligation in Practical Legal Reasoning 1 Introduction The empirical reality of international human rights law, observed in the preceding Chapters, demonstrates that the procedural obligation could be conceived as a concept under which the actions of criminal investigation and prosecution (and its subtle requirements) operate as the mechanisms of human rights protection. In the most general terms, this could be understood as an obligation incumbent on the state authorities to apply these criminallaw mechanisms in a practical and effective manner in securing the human rights of an individual so as to ensure the determination of a criminal matter by elucidating the circumstances of a human rights offence and holding those responsible to account. In practical legal reasoning this procedural obligation operates as a demand or duty directed against the state that some state of affairs be obtained which, in the concrete case, arises as an implicit social claim established under the provisions of a specific human rights statute, such as the echr.1 It thus typically represents a case in which one has a right that another do something or make something happen.2 The fact that the legal relation at issue arises in the context of international human rights law and that another in this case is the state cannot alter the proposed general logically-induced construction.3 1 For the importance of normative recognition of social claims as human rights see: R.B. Bilder, “Rethinking International Human Rights: Some Basic Questions”, 1 Wisconsin Law Review (1969), pp. 171–217. 2 W.A. Edmundson, An Introduction to Rights (Cambridge, Cambridge University Press 2004), p. 95. 3 Alan Gewirth discusses the general relations of human rights within a structure where one person A has a right to something X. This means that A is entitled to X and also that some other person or persons have a correlative duty to provide X for A as his due or that they have to assist A’s having X or at least refraining with A’s having X (A. Gewirth, “The Basis and Content of Human Rights”, 13 Georgia Law Review (1979), p. 1142). See further for the analysis of human rights against the general structure of all rights: J. Eekelaar, “Personal Rights and Human Rights”, 2(2) Human Rights Law Review (2002), pp. 182–197. For the legal framework of human rights as legal rights see: A. Reinisch, “The Changing International Legal Framework

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This is particularly true given that the procedural obligation is not merely political or moral4 but a legal duty embedded in the provisions of binding international treaties which impose a responsibility on the state to protect the rights of citizens. As a legal duty, the procedural obligation develops in the context of international human rights law and the case-law of international courts and other quasi-judicial bodies, or in some instances in the diverse domestic human rights and constitutional discourse.5 After all, as scholars have submitted, the discourse of international human rights is not designed to regulate the interactions of states but rather to hold governments accountable for conduct or omissions occurring within their own borders. It could be therefore said that human rights law essentially empowers the objects of its protection (individuals, groups, and private parties) to enforce legal commitments through international courts and quasi-judicial bodies.6 It would appear, however, that the concept of procedural obligation, being a set of interrelated aspects of applicability and effectiveness, is overly complex for an efficient application in practical legal reasoning. This complexity often causes frictions between the human rights expectations and the reality of criminal justice discourse, which then generates further, more fundamental, for Dealing with Non-State Actors” in: P. Alston (ed.), Non-State Actors and Human Rights (Oxford, Oxford University Press 2005), p. 40; A. D’Amato, “The Concept of Human Rights in International Law”, 82 Columbia Law Review (1982), pp. 1110–1159. 4 Note that Matthew H. Kramer argued that the general analytical scheme of legal relations is mutatis mutandis applicable to moral relations (M.H. Kramer, “Rights Without Trimmings” in: M.H. Kramer, N.E. Simmonds and H. Steiner, A Debate Over Rights: Philosophical Enquiries (Oxford, Oxford University Press 2000), pp. 8–9). Similarly, Leif Wenar considers that the general analytical framework of rights holds for all rights of conduct; such as moral rights, legal rights or customary rights (see L. Wenar, “The Nature of Rights”, 33(3) Philosophical and Public Affairs (2005), p. 224). 5 See on the general sources of human rights: J.J. Shestack, “The Philosophical Foundations of Human Rights”, 20(2) Human Rights Quarterly (1998), pp. 201–234; M. Freeman, “The Philosophical Foundations of Human Rights”, 16 Human Rights Quarterly (1994), pp. 491– 514. See further with regard to the state’s obligations under international law: E.A. Posner, “Do States Have a Moral Obligation to Obey International Law?”, 55 Stanford Law Review (2003), p. 1904; and for the responsibility of the Government to respect constitutional rights: R. Dworkin, Taking Rights Seriously (London, Duckworth 1977), pp. 190–205. See also a discussion on the general concept of legal obligations: B.C. Zipursky, “Legal Obligations and the Internal Aspect of Rules”, 75 Fordham Law Review (2006) pp. 1229–1253. 6 L.R. Helfer, “Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes”, 102 Columbia Law Review (2002), p. 1842.

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impediments to conceiving the sword function of human rights law7 and, at a very practical level, leads to the numerous observed violations of human rights. A solution for overcoming this complexity can be sought in various theories advanced by legal scholars, which are capable of explaining the process of reduction of the procedural obligation from the general requirement of observance of human rights norms. One of such theories is advocated by Sandra Fredman. She submits that each right can be viewed as giving rise to a particular cluster of obligations – some of which impose a negative duty on the state to abstain from interfering, while others entail a requirement for positive action.8 Indeed, the question of procedural obligation arises independently of any question of interference into a right and a violation of the particular aspects of a right is conceivable independently under the head of negative (interference) and/or positive aspects or requirements. Moreover, every fundamental or core right (such as freedom of expression) can be reduced to particular instances of derivative rights (such as freedom of political expression or right to access to public information). In practical reasoning these derivative rights, while conceptually underlined by the considerations related to the core or more fundamental rights, will operate under their autonomous scopes and requirements of effectuation. The scope and requirement of effectuation of a derivative right will not necessarily be the same as the one related to some other derivative right reduced from the same core or fundamental right. In this sense, the derivative rights become separate and autonomous legal entities. The general structure of this regularity was explained by Andrew Halpin. He submits at the higher level the formulation is always abstract whereas at the lower levels there is a connection between a general concrete provision and a particular instance of it. For instance, there is the “right to privacy,” as an abstract form, and at the lower levels of reduction there is the “right that police not search apartments,” as a general concrete provision, and then further that “police not search my apartment,” as a particular instance of it.9 7 These are, as it was observed earlier in this study, lack of systematised information on the human rights requirements, ambiguity, and over-ambitiousness of some expectations of human rights law (see supra 1.2.). 8 S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford, Oxford University Press 2009), p. 69. 9 A. Halpin, “Rights and Reasons: A Response to Harel”, 18 Oxford Journal of Legal Studies (1998), p. 486. Another example which is more pertinent to the discussion in this study could be given with regard to a right giving rise to the requirement of positive action. Thus: “freedom of expression” (core right) – “right to access to public information” (general concrete provision) – “access to public information within reasonable time” (particular instance) (see further: ECtHR (Judgment) Kenedi v. Hungary, no. 31475/05, 26 May 2009, paras. 43–45). Indeed, such

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One could, of course, go into the opposite direction of further generalisation and abstraction. In this case the “right to privacy” would correspond to the right to respect for democratic civil and political realisation and then further we would arrive at the concepts of freedom and well-being, which are, as Alen Gewirth explains, the necessary goods of action from which ascription and contents of all human rights follow.10 The above discussion suggests that the conceptual juridical construction of the legal relationship between the individual right-holder and the duty owned to him or her varies with regard to the particular concrete provision of a right at issue, connected with the relevant negative (non-interference) or positive duties.11 In order to avoid the conceptual fallacies and misunderstandings this distinction should be consistently observed and respected in practical reasoning.12 This accordingly applies in the context of search for a juridical construction of the concept of procedural obligation in practical reasoning given that, as already observed above, this procedural obligation is conceptually a demand or duty directed against the state that some state of affairs to the benefit of an individual right-holder be obtained. On the basis of the above conceptual premises, a further examination of the juridical construction of the concept of procedural obligation is in order. In the discussion that follows, this will be construed as a search for logical and conceptual juridical construction and substantive or criterial aspect of the procedural obligation. 2

Logical and Conceptual Juridical Construction of the Concept of Procedural Obligation

The logical structure of the internal relationship inherent in the concept of procedural obligation, conceived in the practical reasoning as a particular



reduction appears to be logically mandated since the connection between “freedom of expression” and “access to public information within reasonable time” cannot be appropriately illustrated without construing the general concrete provision of “right to access to public information.” 10 Gewirth, supra n. 5.3, p. 1150. See further the discussion in the context of an attempt to give a theory of general idea of human rights: A. Sen, “Elements of a Theory of Human Rights”, 32(4) Philosophy and Public Affairs (2004), pp. 315–356. 11 Fredman, supra n. 5.8, pp. 87–91. 12 For the juridical constructions related to “a claim to non-interference” see: A. Spena, “The Strange Case of the Protective Perimeter: Liberties and Claims to Non-Interference”, 31(2) Law and Philosophy (2012), pp. 161–184.

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legal duty or demand, could be analytically viewed against the following example. Suppose that Mary has been a victim of a violent offence (and thus breach of her human rights) committed by John, and that Mary has an interest in the criminal prosecution of John. The consequence of the offence is the existence of a social conflict or the criminal matter. The moral considerations and the social necessity for resolution of the matter, conceived under the relevant criminal law provisions, require the state authorities to prosecute John (elements of the public interest in prosecution). But what if the state authorities decline to prosecute John because for some arbitrary or simply erroneous reason they do not find sufficient public interest in the prosecution, or what if the state authorities, for the same reason, deliberately fail to invest sufficient resources in the prosecution? It would appear that Mary’s interest in prosecution and the state authorities’ obligation to prosecute are not in themselves sufficient to convert Mary’s interest into her possibility to actually claim prosecution. However, at the same time the relevant human rights requirements impose a duty on the state to provide a framework for deterrence, prevention and suppression of any violence against Mary (substantive positive obligation) as well as an obligation to effectively investigate and prosecute any act of violence which has occurred (procedural obligation). The latter obligation, which is of the interest in the present study, is implied in Mary’s internationally recognised (higher) human right to respect for her physical integrity (Articles 3 and/ or 8 echr). Suppose furthermore that the state at issue is subjected to an international mechanism of supervision of its respect for human rights, such as the echr, which recognises a possibility for Mary to lodge an individual complaint against the state when it failed to respect her human rights. If Mary lodged such a complaint arguing that the state had failed to (effectively) prosecute a violent attack against her, and if her claim were arguable and merited consideration, that could eventually13 force the state authorities in a position to engage in (an effective) criminal prosecution of John through the mechanisms of international finding of a violation of Mary’s human rights and the 13

Of course, only if appropriate as, like with all other requirements of human rights law, the requirement of effective investigation and prosecution is subjected to definitional restrictions related to circumstances in which it takes place. Thus, for instance, it would be absurd to argue that an investigation must be followed by prosecution if, even without any culpable failures in the investigation, it did not produce evidence of a reasonable suspicion that the suspect has committed the offence. In fact, there is no known theory or practice of human rights law advocating such a solution.

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international political pressure in the execution of restitution measures pertaining to such finding.14 There is therefore an instance of quasi-criminal jurisdiction exercised through the international human rights adjudication.15 The same would follow if this example would be conceived within the framework of a national constitutional or some other human rights discourse that has appropriately domesticated the relevant echr principles. This has brought the discussion into the realm of rights assertions which involves the state authorities’ duty to engage in an effective investigation and criminal prosecution of John’s offence which is correlated with Mary’s claim or demand to that effect. It is therefore clear that when talking about the procedural obligation in practical reasoning we are not dealing with an imperfect duty which does not carry a correlative claim.16 On the contrary, we could easily conceive this relationship within Joel Feinberg’s construction of claim-rights according to which to have a right means to have a claim against someone which is valid under some set of governing rules or moral principles. At the same time, to have a claim means to have a case meriting consideration, that is, to have reason or grounds to engage another in performative and propositional claiming.17 This assertion could also be verified empirically against the existence of concrete examples from the practice of human rights adjudications related to the echr system.18 The framework within which the effectuation of this quasi14

See for example: coe-cm Interim Resolution CM/ResDH(2007)107 concerning the judgments of the European Court of Human Rights in the case of Velikova and seven other cases against Bulgaria (see Appendix i) relating in particular to the ill-treatment inflicted by police forces, including three deaths, and the lack of an effective investigation, 17 October 2007. See further: Helfer, supra n. 5.6, pp. 1849–1850. 15 The term is borrowed from Alexandra Huneeus (supra n. 1.37). 16 Edmundson, supra n. 5.2, p. 99. 17 J. Feinberg, “The Nature and Value of Rights”, 4 The journal of Value Inquiry (1970), p. 257. See further for the discussion on Feinberg’s theory: C.H. Wellman, “Feinberg’s two concepts of rights”, 11(3) Legal Theory (2005), pp. 213–226; G.W. Rainbolt, “Two interpretations of Feinberg’s theory of rights”, 11(3) Legal Theory (2005), pp. 227–236. 18 This study does not need to go into theoretical questions or, for that matter, general problems of enforcement of the ECtHR judgments (see further: J. Gerards (ed.), Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law : a comparative analysis (Cambridge, Intersentia, 2014); C.M. De Vos, From rights to remedies structures and strategies for implementing international human rights decisions (Part 1), 19(2) East European human rights review (2013), pp. 131– 263) as, in its endeavour to conceptualise the right assertion connected with the concept of procedural obligation in human rights law, it suffices to observe the existence of some concrete examples of adjudication. In this connection it essentially follows the approach

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criminal jurisdiction operates is twofold. Firstly, under Article 46 echr,19 which already at the level of adjudication opens the possibility for a direct indication of the obligation to investigate and, if appropriate, prosecute as the necessary individual measure that must be adopted at the domestic level in order to put an end to the violation found and to redress as far as possible its effects;20 and secondly, through the activities of the coe Committee of Ministers in the execution of the ECtHR judgments.21

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adopted by Huneeus who considers, in arguing her theory of quasi-criminal jurisdiction of international human rights courts, that the matter of effectiveness of such jurisdiction is an empirical question that has to be assessed against the international supervisory bodies’ actual success in triggering local prosecutions and the effectiveness of their review of national criminal procedures. In the context of the echr system, Huneeus considers that the quasi-criminal jurisdiction is effectuated through the activities of the coe Committee of Ministers in the procedure of execution of the ECtHR judgments, which she then observes in the context of the execution of judgments against Russia related to the Chechen conflict (see Huneeus, supra n. 1.37, pp. 23–26). Article 46 § 1 echr reads: “The High Contracting Parties under-take to abide by the final judgment of the Court in any case to which they are parties.” See in general on Article 46 echr: L.A. Sicilianos, “The role of the European Court of Human Rights in the execution of its own judgments: reflections on Article 46 echr”, in A. Siebert-Fohr and M. Villiger (eds.), Judgments of the European Court of Human Rights – Effects and Implementation (Farnham, Ashgate 2014), pp. 285–315. For the importance of such direct indication see the concurring opinion of Judge D. Spielmann, joined by Judges I. Ziemele and Z. Kalaydjieva, in the echr case of Varnava and Others v. Turkey [gc], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 18 September 2009. Note, however, that the ECtHR is principally not inclined to indicate the duty of an effective investigation, and if appropriate, prosecution under Article 46 echr, as it considers it to be a matter that has to be addressed before the coe Committee of Ministers in the procedure of execution of the judgment (see ECtHR (Judgment) Orhan v. Turkey, no. 25656/94, 18 June 2002, para. 451; ECtHR (Judgment) Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002, para. 461; ECtHR (Judgment) Finucane v. the United Kingdom, no. 29178/95, 1 July 2003, paras. 89–90; ECtHR (Judgment) Kukayev v. Russia, no. 29361/02, 15 November 2007, para. 134; ECtHR (Judgment) Kaplanova v. Russia, no. 7653/02, 29 April 2008, para. 152; ECtHR (Judgment) Lyanova and Aliyeva v. Russia, nos. 12713/02 and 28440/03, 2 October 2008, para. 160; ECtHR (Judgment) Mutsolgova and Others v. Russia, no. 2952/06, 1 April 2010, para. 168; ECtHR (Judgment) Al-Skeini and Others v. the United Kingdom [gc], no. 55721/07, 7 July 2011, para. 181). However, in the execution procedure, the specific findings of inadequacy of the investigation and prosecution observed in the ECtHR judgment serve as guidlines for execution (see ECtHR (Judgment) Yandiyev and Others v. Russia, nos. 34541/06, 1578/07 and 43811/06, 10 October 2013, para. 146). Article 46 § 2 echr provides that “[t]he final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” The Recommendation

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The former approach can be observed, for example, in the case of Association “21 December 1989” and Others v. Romania, concerning deaths during the Romanian anti-government demonstrations which took place in December 1989, where the ECtHR indicated under Article 46 echr that the respondent State should “put an end to the situation identified in the present case and found by it to have been in breach of the Convention, concerning the right of the many persons affected, such as the individual applicants, to an effective investigation;”22 or in the case of Ataykaya v. Turkey, also concerning the deprivation of life of an individual during demonstrations, as well as İzci v. Turkey, concerning the beating by the police officers during demonstrations, where the ECtHR expressly instructed the Committee of Ministers to supervise the domestic investigations with a view to identification and punishment of those responsible.23 A specific indication of the procedural duties to the same effect was made under Article 46 echr in respect of killings during the Chechen conflict in Abuyeva and Others v. Russia,24 or the problem of disappearances in the Northern Caucasus,25 and the Turkish wide-scale security operations,26 as

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No. R (2000) 2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights of 19 January 2000 (hereinafter: Rec(2000)2) further refers to the “wellknown international law principle of restitutio in integrum” where, in particular, the need to improve the possibilities under national legal systems to ensure restitutio in integrum for the injured party is apparent. Sometimes, this will not be possible without adopting the general measures in the national legal system as a prerequisite for an individual restitutio in integrum. Thus, Rec(2000)2 invited the coe Member States to provide in their legislation for the possibility of re-examination or reopening of the cases; where the term “re-examination” has to be understood in a generic sense indicating any measure allowing, as far as possible, restitutio in integrum to be achieved. The “re-examination” or reopening will in particular be important in cases where the ECtHR judgment leads to the conclusion that (1) the impugned domestic decision is on the merits contrary to the echr; or (2) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of (see further: Explanatory Memorandum to the Rec(2000)2). ECtHR (Judgment) Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011, para. 194. ECtHR (Judgment) Ataykaya v. Turkey, no. 50275/08, 22 July 2014, paras. 74–75; ECtHR (Judgment) İzci v. Turkey, no. 42606/05, 23 July 2013, para. 98. ECtHR (Judgment) Abuyeva and Others v. Russia, no. 27065/05, 2 December 2010, paras. 236–243. ECtHR (Judgment) Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, 18 December 2012, paras. 229–238. ECtHR (Judgment) Benzer and Others v. Turkey, no. 23502/06, 12 November 2013, para. 219.

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well as in a non-refoulement context.27 A specific indication was also made in connection with the excessive use of force during demonstrations and the necessity of investigation into the responsibility of higher police officials.28 Similarly, some particular aspects of the procedure, such as promptness and reasonable expedition, were specifically indicated, for instance, in Nihayet Arıcı and Others v. Turkey, concerning the killings during a Turkish wide-scale military operation,29 and the killings by the security forces in Northern Ireland in ­McCaughey and Others v. the United Kingdom, Collette and Michael Hemsworth v. the United Kingdom and Mcdonnell v. the United Kingdom.30 On the other hand, in Kaverzin v. Ukraine the ECtHR identified a systemic problem of the lack of effectiveness of criminal investigations and prosecutions of various instances of police violence and thus, under Article 46 echr, ordered that the State should reform its criminal justice system so as to secure an effective procedural response consonant with the findings in the judgment at issue and more generally with “the [ECtHR’s] relevant case-law and the Committee of Ministers’ relevant recommendations, resolutions and decisions.”31 In S.Z. v. Bulgaria, however, after having identified the general problem of ineffectiveness of criminal investigations and prosecutions, the ECtHR did not order individual measures under Article 46 echr, but instructed the Committee of Ministers to supervise the execution of the judgment in the light of the identified structural omissions.32 Similarly, in the case of Sultan Dölek and Others v. Turkey, the ECtHR did not indicate an individual measure under Article 46 echr but noted that amendments to the relevant domestic law introduced a possibility for the victim to ask the national authorities to reopen investigations into suspicious deaths on the basis of a violation found by the ECtHR. It thus instructed the victims to seek the institution of an “effective investigation by taking into account the deficiencies identified by the [ECtHR] in the previous investigation.”33 27 28 29 30

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ECtHR (Judgment) Mukhitdinov v. Russia, no. 20999/14, 21 May 2015, paras. 112–114. ECtHR (Judgment) Süleyman Çelebi and Others v. Turkey, nos. 37273/10 et al., 24 May 2016, para. 133. ECtHR (Judgment) Nihayet Arıcı and Others v. Turkey, nos. 24604/04 and 16855/05, 23 ­October 2012, para. 176. ECtHR (Judgment) McCaughey and Others v. the United Kingdom, no. 43098/09, 16 July 2013, para. 145; ECtHR (Judgment) Collette and Michael Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013, para. 77; ECtHR (Judgment) Mcdonnell v. the United Kingdom, no. 19563/11, 9 December 2014, para. 93. ECtHR (Judgment) Kaverzin v. Ukraine, no. 23893/03, 15 May 2012, para. 182. ECtHR (Judgment) S.Z. v. Bulgaria, no. 29263/12, 3 March 2015, paras. 56–58. See further: ECtHR (Judgment) Mulini v. Bulgaria, no. 2092/08, 20 October 2015, para. 52. ECtHR (Judgment) Sultan Dölek and Others v. Turkey, no. 34902/10, 28 April 2015, para. 84.

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The effectuation of quasi-criminal jurisdiction through the activities of the coe Committee of Ministers, as another legal framework in which it operates, will have practical individual implications in the application of criminal-law mechanism at the domestic level only when it can produce reasonable and concrete results. Otherwise, when in the particular circumstances of the case that cannot be expected, the examination of the case may be closed without taking further procedural measures at the domestic level. This can be observed, for instance, in the case of Ramsahai and Others v. the Netherlands, where the ECtHR found no violation of the substantive aspect of Article 2 echr related to the use of force by the state agents, where it was accepted that a further investigation at the domestic level was not necessary as it would probably not have produced a different result.34 Similarly, some national criminal justice systems leave it to the victim to seek a re-examination of his or her case based on the judgment of the ECtHR. In such instances it is on the victim to seek rectification of the procedural failures leading to a violation of his or her echr rights.35 However, in any case, a re-examination of the case at the domestic level following a judgment of the ECtHR must make due allowance for the particular findings in the judgment.36 This is a requirement which also follows from the 34

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coe-cm Resolution CM/ResDH(2010)178, Execution of the judgment of the European Court of Human Rights, Ramsahai against the Netherlands, 2 December 2010. See further: coe-cm Resolution CM/ResDH(2009)19, Execution of the judgments of the European Court of Human Rights, Brecknell and 4 other cases against the United Kingdom, 9 January 2009. coe-cm Resolution CM/ResDH(2013)233, Three cases against Romania, Execution of the judgments of the European Court of Human Rights, 20 November 2013; coecm Resolution CM/ResDH(2013)153, Angel Angelov against Bulgaria, Execution of the judgment of the European Court of Human Rights, 11 September 2013; coe-cm Resolution CM/ResDH(2011)3, Execution of the judgment of the European Court of Human Rights, M.C. against Bulgaria, 4 March 2004. In the case no. Kž-273/13-3, concerning the execution of the ECtHR judgment in V.D. v. Croatia, no. 15526/10, 8 November 2011, by which it found a violation of the substantive and procedural limbs of Article 3 echr in connection with an incident of police illtreatment, the Croatian Supreme Court addressed an objection of the accused that the provisions on the reopening of criminal proceedings following a finding of a violation of the echr by the ECtHR were not designed so as to allow the victim a possibility to seek the reopening of the case. It its decision of 16 January 2014, the Croatian Supreme Court rejected these arguments and ordered the reopening and re-examination of the case in accordance with the findings of the ECtHR. See, for example: Action plan of the Government of Azerbaijan of 22 April 2013, examined by the coe-cm at its 1172 meeting on 4–6 June 2013 (doc. dh-dd(2013)451), concerning the execution of the ECtHR (Judgment) Najafli v. Azerbaijan, no. 2594/07, 2 October 2012, in which the ECtHR found a violation of the procedural limb of Article 3 echr related to

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ECtHR’s case-law in Jeronovičs v. Latvia.37 In practice, such a re-examination of the case can have a bearing on various procedural aspects, such as the organisation and triggering of the proceedings,38 taking of appropriate evidence,39 complying with the specific requirements of effectiveness – such as promptness and reasonable expedition,40 or securing appropriate victim involvement, or further detailed questioning of witnesses and suspects.41 As already observed above, conceptually the same model of effectuation of quasi-criminal jurisdiction would follow from the national constitutional discourse that has appropriately domesticated the relevant echr principles. This can be observed, for instance, in the systemic and elaborate reliance on the relevant principles following from the ECtHR case-law in the United Kingdom human rights adjudication by the House of Lords and the Supreme Court;42 or in several decisions of the Croatian Constitutional Court where it examined the manner of application and effectiveness of criminal investigation and prosecution from the perspective of human rights requirements, which

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the police ill-treatment, where the Government of Azerbaijan, in the context of individual measures of enforcement, noted: “Given the Court’s judgement on this case, the decision of the Sabail District Prosecutor’s Office to suspend the criminal proceedings adopted on 9 March 2006 was quashed by the Office of Prosecutor General on 2 April 2013 and the investigation was renewed in order to address the issues raised in the Court’s judgment, as well as to ensure the conduction of complete and comprehensive investigation of the case and adoption of objective decision.” ECtHR (Judgment) Jeronovičs v. Latvia [gc], no. 44898/10, 5 July 2016, paras. 119–123. ECtHR (Decision) Egmez v. Cyprus (dec.), no. 12214/07, 18 September 2012. coe-cm Resolution CM/ResDH(2013)208, Byrzykowski against Poland, Execution of the judgment of the European Court of Human Rights, 16 October 2013. coe-cm Interim Resolution CM/ResDH(2007)73, Action of the Security Forces in Northern Ireland (Case of McKerr against the United Kingdom and five similar cases), 6 June 2007. See further: Consolidated action plan of the Government of Georgia of 16 July 2013, examined by the coe-cm at its 1208 meeting on 23–25 September 2014 (doc. dhdd(2014)955), concerning the execution of the ECtHR judgments: Mikiashvili v. Georgia, no. 18996/06, 9 October 2012; Khaindrava and Dzamashvili v. Georgia, no. 18183/05, 8 June 2010; Dvalishvili v. Georgia, no. 19634/07, 18 December 2012; Tsintsabadze v. Georgia, no. 35403/06, 15 February 2011; Gharibashvili v. Georgia, no. 11830/03, 29 July 2008, concerning violations of the procedural limbs of Articles 2 and 3 echr. See, for example: R (Amin) v Secretary of State for the Home Department [2003] ukhl 51 (16 October 2003); R (Middleton) v Coroner for the Western District of Somerset [2004] ukhl 10 (11 March 2004); McCaughey & Anor, Re Application for Judicial Review [2011] uksc 20 (18 May 2011).

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eventually, in view of the identified omissions, led to a re-examination of the cases by the competent criminal justice authorities.43 The ascertaining of the quasi-criminal jurisdiction in the preceding discussion did not resolve all conceptual difficulties which arise in this context. The principal difficulty relates to the fact that the relationship observed in the above example cannot be adequately explained by conceiving Mary’s claim simply as the right to respect for private life or the right not to be tortured (right to physical integrity) which, as core rights, imply more general concrete provisions giving rise both to negative and positive requirements. Such an approach leads to a conceptual complexity and vagueness in which it is not clear whether the demand that the state engage in an effective investigation and criminal prosecution of John’s offence is merely the protective parameter of a claim to noninterference or an independent requirement for positive action arising from some general concrete provision derived from the core right at issue. In other words, further reduction from the core right to respect for private life or the right not to be tortured (or to that effect from the generic right to well-being) is logically mandated if we were to explain it as a corollary to the state’s duty to Mary that the offence to her detriment be effectively investigated and prosecuted by engaging in very specific actions such as, amongst other things, adequate securing of the crime scene, collecting and preserving the relevant evidence, identification and questioning of witnesses and John’s adequate sanctioning. It should be noted, however, that some authors consider that assertions of broad and indeterminate rights (such as the right to respect for private life) can also be specified in several different ways within the complex of the general analytical framework of rights. In that case, the different specifications correspond to different understandings of the right at issue, and a further conceptualisation of this specification is unnecessary.44 However, from the perspective of this study, the doubts which could legitimately arise relate to the logical perplexity of the statement: “Mary has a right that the state authorities respect her physical integrity” (as a core fundamental right). It accordingly follows that: “the state authorities have a duty to Mary to collect and properly analyse weapon used for the attack against her and to identify and question all witnesses of the event.”45 43

Case no. U-iii-791/1997, decision of 14 March 2001; case no. U-iii-6559/2010, decision of 13 November 2014. 44 Wenar, supra n. 5.4, p. 235. 45 The same logical perplexity would arise with regard to the following statement: “Mark has a right to respect for privacy.” It accordingly follows that police, when conducting a search of his apartment, has “a duty to secure sufficiently specified search order” (see, for

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This statement is not incorrect but simply overly complex in practical reasoning. In this case the perplexity is created by a gap which exists between the assertion of a core or fundamental right (right to respect for physical integrity) and the very specific duties corresponding to that right. In other words, the right to respect for physical integrity also includes, for instance, “right to respect for the choice of medical treatment,”46 which has nothing to do with the question of the investigative actions mentioned in the above statement. This perplexity can be overcome only if from the fundamental core right to respect physical integrity the general concrete provision is derived that would correspond to the state’ s specific duties at issue. It follows that we are logically required to proceed to conceive the particular right following from the right assertion observed in the above example. In this respect the right assertion at issue could be conceived as a statement in the following fundamental form proposed by Leif Wenar: “X has a right that Y φ.”47 X – the subject of the right or the right-holder. In the concrete case, the preceding analysis of the concept of procedural obligation suggests that it can be: (1) the right-holder of the substantive core right at issue; (2) an individual who can invoke the right to protection from the perspective of the state’s positive obligations; (3) and/or the person who can, in relation to the substantive right, claim the right to an effective remedy. Y – the object or the duty holder. It is any of the competent state authorities. φ – an active verb which specifies what the relation of right-duty is about. In the context of the procedural obligation it can be twofold: (1) that the state engage in an official effective investigation and prosecution of a human rights offence; or (2) that the state secure an effective judicial system by which a criminal matter can be resolved. Since more commonly, and perhaps predominantly, these procedural aspects related to the occurrence of a criminal offence are induced by the public-interest considerations, the activity here at issue example, ECtHR (Judgment) Van Rossem v. Belgium, no. 41872/98, 9 December 2004, para. 45). This perplexity can be overcome by deriving the “right that police not search apartments” as a general concrete provision of the core right to respect for privacy. Now the statement reads: “Mark has a right that police not search (his) apartment.” It accordingly follows that police, when conducting a search of his apartment, has a duty to secure sufficiently specified search order. This does not mean that the former statement is incorrect but it can be overly complex in practical reasoning because the “right to respect for privacy” also includes, for instance, “right to respect for personal image,” which has nothing to do with the question of specified orders for the search of one’s apartment. 46 See further: ECtHR (Judgment) Glass v. the United Kingdom, no. 61827/00, 9 March 2004. 47 Wenar, supra n. 5.4, p. 225. Note that for the purpose of textual convenience the demarcation of the subject, object and content has been changed.

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(induced by the individual human rights-based requirements) could be rather determined as (h)φ, and the public-induced activity of φ can be specified as (p)φ. It follows, in terms of the above observed example, that Mary holds the position X in the proposed form, the prosecuting state authorities hold the position Y and the substance of the legal relationship between them – effective investigation and criminal prosecution of John’s offence against Mary – could be in overall denoted as φ. However, more specifically, φ claimed by Mary in the context of the authorities’ failure to (effectively) prosecute John – eventually bringing about that the state was obliged to engage in an effective investigation and prosecution – is individual-based duty of h(φ), which operates concurrently with the public-based duty of p(φ).48 In sum, the form of right assertion which this study endeavours to examine can be denoted as: “X has a right that Y h(φ)” where h(φ) is the action of effective application of criminal-law mechanisms in human rights protection. In the context of the analytical structure of the basic Hohfeldian incidents,49 as conceived by Wenar, this right assertion primarily indicates right-claim 48

49

Kramer submits that each private duty correlates with an individual right whereas each public duty correlates with a collective right (M.H. Kramer, “Legal and Moral Obligations”, in: in M.P. Golding and W.A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (Malden, Blackwell Publishing 2008), p. 189). The American legal theorist Wesley Newcomb Hohfeld in his seminal work Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (New Haven, Yale University Press 1919) proposed a widely accepted analytical framework of jural relations within which all assertions of rights can be understood. He devised the following scheme of legal relations (p. 36): right    privilege   power    immunity Jural Opposites: no-right  duty       disability  liability right     privilege     power   immunity Jural Correlatives: duty    no-right    liability   disability In general, Hohfled provides four meanings to the statement “A has a right to X.” (1) Claimrights – “A has a right to X” may mean that some B has a duty towards A and that A has a claim against B to the provision of X. (2) Liberty-rights – “A has a right to X” may indicate that A has no duty toward some B to refrain from X. (3) Powers – “A has a right to X” may suggest that A is capable of changing an existing legal arrangement and consequently change the rights of others. (4) Immunities – “A has a right to X” may mean a lack of power on the part of another to alter one’s rights. When A has an immunity-right against some B concerning X, then B cannot alter A’s rights or duties with regard to X. See further: A. Harel, “Theories of Rights”, in M.P. Golding and W.A. Edmundson (eds.), Blackwell Guide to

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which can be observed as: “X has a right that Y φ” when this implies that “Y has a duty to X to φ.” Within the Wenar’s categorisation of functions that a rightclaim can have (protection, provision and performance) the right-claim at issue entitles its bearer to specific performance. This performance can be conceived as agreed-upon (under the relevant legal instrument, such as the echr) legally specified action of effective application of criminal-law mechanisms in human rights protection.50 The right-claim, at issue, as a general concrete provision derived from one of the applicable fundamental or core rights, can be denoted as the “right-claim to effective application of criminal-law mechanisms.”51 As rights are typically combinations of Hohfeldian incidents we can observe in the structure of the right-claim to effective application of criminallaw mechanisms a further regularity induced in the legal theory with regard to claim-rights. In particular, theorists have submitted that in order for a claim to count as a genuine right it must be accompanied by immunities.52 An example of immunities was given by Alon Harel who has explained that this function is ordinarily enshrined in constitutional rights, which deprive the legislature of powers that it would normally have. Hence, a person has an immunity right to freedom of expression which prevents the legislature from enacting a law extinguishing his or her liberty to speak. The same is true for any echr-­enshrined or domesticated constitutional right, such as the right-claim to effective application of criminal-law mechanisms, which cannot be abrogated by individual legislative enactments.53 Furthermore, the right-claim to effective application of criminal-law mechanisms can also be observed as a power or ability capable of changing the legal arrangement of criminal investigation and prosecution and consequently the rights of the offenders. In other words, if the action of application of criminallaw mechanisms is conceived as an activity induced by public-interest and the Philosophy of Law and Legal Theory (Malden, Blackwell Publishing 2005), pp. 192–193; Wenar supra n. 5.4, pp. 223–237; A.L. Corbin, “Jural Relations and Their Classification”, 30 The Yale Law Journal (1921), pp. 226–238; Kramer, supra n. 5.4, pp. 8–22. 50 Wenar, supra n. 5.4, pp. 229–230. 51 Although, as noted above, the form of the right assertion at issue can be better denoted as “X has a right that Y φ” than “X has a right to φ.” Therefore “right to effective application of criminal-law mechanisms” should be understood as “right that the state apply criminallaw mechanisms.” However, since the adjectival aspect of “effectiveness” relates to the state’s duty at issue, for the purpose of textual convenience the term “right to effective application of criminal-law mechanisms” will be used. 52 M.H. Kramer and H. Steiner, “Theories of Rights: Is There a Third Way?”, 27(2) Oxford Journal of Legal Studies (2007), p. 297; Wenar, supra n. 5.4, p. 234. 53 Harel, supra n. 5.49, p. 193.

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individual (human rights) interest considerations then the latter considerations change the overall arrangement of that action. That is to say, effective investigation and criminal prosecution can no longer be determined only as φ but as a conjunction of h(φ) and p(φ), with a consequential effect on the legal position of the offender or defendant in the criminal proceedings. The offender, under this construction, stands the ordeal of criminal process in order to answer for the suspected breach of human rights and not only his or her presumed disrespect for public order. It is important, however, to observe that by designing the proposed template for displaying the logical and conceptual structure of the right-claim to effective application of criminal-law mechanisms we are merely saying: “this right, in an analytical sense, can be understood as one of basic Hohfeldian incident(s).” This is simply an analytical premise based on the Hohfeldian structure of rights which does not need to be subjected to empirical or moral refutation since, as all prominent theorists agree, this structure is neutral, that is to say, purely conceptual and definitional.54 However, we have thereby not completed the analysis of the concept of right-claim to effective application of criminal-law mechanisms since, according to the central theories of rights,55 not all Hohfeldian incidents qualify as rights because they do not perform the function that all rights perform.56 In other words, identifying Mary’s right-claim and the correlative duty that the state φ, or more precisely h(φ), does not tell us whether or why Mary is entitled to φ and, consequently, whether or why the state has that correlative duty towards Mary.57 This is the reason why some assertions in legal theory related to the concept of procedural obligation, when affirming or denying the existence of a corresponding right to the specific procedural duties in the context of criminal-law protection,58 are either premature and injudicious or simply need further explanation. 54

Loc. cit.; Wenar, supra n. 5.4, pp. 223–224; Kramer, supra n. 5.4, p. 8; Corbin, supra n. 5.49, p. 229. 55 Kramer and Steiner, supra n. 5.52, p. 310. 56 Wenar, supra n. 5.4, p. 237. 57 Gewirth, supra n. 5.3, p. 1143. 58 Various studies on the procedural obligation in human rights law have reached divergent conclusions whether there is a particular right in a correlation to the procedural duty to investigate and prosecute human rights offences. Anja Siebert-Fohr has strongly rejected such a possibility (Siebert-Fohr, supra n. 1.69, p. 224) and Basch has come to the same conclusion with regard to the ECtHR case-law (Basch, supra n. 1.54, pp. 221–224). In this connection it should be noted that in the practice of the ECtHR the use of terminology such as “the right to an effective

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In order to avoid any such methodological fallacy and to answer these questions it is necessary to examine the substantive and criterial aspect of the concept denoted as the right-claim to effective application of criminal-law mechanisms, or the question what it is that makes the right-claim to effective application of criminal-law mechanisms a right. 3

Substantive and Criterial Aspect of the Right-Claim to Effective Application of Criminal-Law Mechanisms

Instead of endeavouring to ascertain whether the right-claim to effective application of criminal-law mechanisms is foundational we might rather seek to explain what it is that makes a demand for effective application of criminal-­ law mechanisms an instance of a more fundamental right. It follows from the above observed conceptual and logical framework which was used for the reduction of the procedural obligation from the higher substantive norm of human rights law. Thereby we are essentially concerned with the question whether the demand for effective application of criminal-law mechanisms can be classified as a right because it is derived from more fundamental rights; or whether it rather denotes a specific demand grounded in public interest.59

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investigation” (ECtHR (Judgment) Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011, para. 194) or “the right to a serious investigation” (the joint concurring opinion of Judges J. Casadevall and L. López Guerra in ECtHR (Judgment) El-Masri v. the former Yugoslav Republic of Macedonia [gc], no. 39630/09, 13 December 2012) can be found. On the other hand, Raquel Aldana-Pindell considers that international human rights law has developed to the extent that it recognises to the victims the right to prosecution (Aldana-Pindell, supra n. 1.72, p. 1415; Aldana-Pindell, supra n. 1.17, p. 621). Similarly, Brems construed the right to procedure and the right to investigation (Brems, supra n. 2.1, pp. 140–141). Tulkens also argued that the sword function of human rights law created “legal obligations that must be satisfied by the state and are enforceable in the courts” (Tulkens, supra n. 1.16, p. 584), and Geneviève Giudicelli-Delage observed that a right to punishment is vested in the individual (Giudicelli-Delage, Manacorda and Tricot, supra n. 1.41, p. 14). Nowak observed the development of “the right of victims of gross human rights violations to demand that Governments criminally prosecute the perpetrators” (Nowak, supra n. 3.137, p. 67), and Ingelse discussed the “right of individuals to the prosecution of perpetrators” as a concept under the cat (Ingelse, supra n. 3.221, pp. 365 and 376). A. Harel, “What Demands are Rights? An Investigation into the Relation between Rights and Reasons”, 17(4) Oxford Journal of Legal Studies (1997), p. 102. Harel gives the example of a person who demands that the government allow him or her to publish some

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A conceptual framework for this endeavour was devised by Harel who argues that the answer to our question depends on the reasons justifying the demand.60 In other words, without articulating the reasons for the demand to effective application of criminal-law mechanisms, its classification as a right derived from a particular core fundamental right cannot be explained. Thereby, however, we are not merely concerned with the assessment whether the protection afforded to this demand is justified – namely whether the demand deserves to be protected – but we also need to establish whether the rightholder’s demand to effective application of criminal-law mechanisms should be guaranteed for the right reasons – reasons by virtue of which this demand should be classified as an instance of a more fundamental core right.61 Harel proposes two types of reasons. The first type relates to intrinsic reasons or the reasons by virtue of which a demand is classified as a right. Not only do such reasons justify the demand, but they also justify its classification as a right. They can be further divided into primary and secondary intrinsic reasons, where the primary reasons are those which protect the right in the first place while the others operate only if accompanied by the intrinsic reasons and primarily serve to expand the scope of a right. The second type of reasons includes extrinsic reasons, which are those reasons affecting the strength of protection that should be granted to a demand but are not essential to its classification as an instance of a right.62 In other words, this dichotomy of reasons materials – that person is described as demanding respect for his or her right to free speech. However, if a person demands that the municipality provide more police protection – that person will be described as making a demand which, although important and valuable, is not rights-based. However, as Harel further explains, nothing should be understood here as indicating that the latter type of demands does not deserve to be protected. In fact, some public-interest consideration may justify an even more stringent protection than a right-based demand would require (Ibid., p. 104). 60 For a critique related in particular to the possibility of generalisation of Harel’s theory see: Halpin, supra n. 5.9, pp. 485–495. Further on the “reductionist” theories see: Harel, supra n. 5.49, pp. 201–203. See also for John Eekelaar’s account of “grounds for entitlement:” Eekelaar, supra n. 5.3, pp. 187–191. 61 Harel, supra n. 5.59, pp. 103–105. 62 Ibid., pp. 102, 105–108. Harel gives the example related to the regulation of pornography and examines the question of the demand not to be subjected to censorship. In this case, the argument for autonomy and market-place of ideas are types of intrinsic reasons since they relate to the general prohibition on the censorship of speech in general, which is, furthermore, at the centre of the core right to free speech. In addition, if one believes that autonomy is the reason which protects the right to free speech in the first place, then autonomy is a primary intrinsic reason, while other reasons (market-place of ideas) may also be intrinsic to the right but in this case they operate only as secondary reasons. On the

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could be observed with regard to the question whether a reason underlies the protection of a right (intrinsic reason) or is limited to promoting some related public interests (extrinsic reason).63 Nevertheless, Harel accepts that one might seek to justify the protection of a right both on the grounds of intrinsic and extrinsic reasons.64 The importance of the distinction between the two types of reasons, according to the theory at issue, lies in the manner in which they operate in practical reasoning. In particular, Harel contends that intrinsic reasons operate in a “uniform, acontextual, rule-like manner.” Accordingly, instead of examining them contextually, the decision-maker attributes to intrinsic reasons certain uniform stringency independent of the circumstances of a case. On the other hand, extrinsic reasons are regularly determined contextually on the basis of the examination of the particular circumstances of a case.65 In the context of the right-claim to effective application of criminal-law mechanisms we can firstly observe that in all three juridical operations of construing the concept of procedural obligation in human rights law (positive obligations, right to a remedy, direct reduction),66 the central tenet or justificatory ground or reason for such enunciation was the logically-induced necessity to make meaningful the protection guaranteed by a particular fundamental or core right, without which that right cannot operate as a practical and effective legal norm but rather as a theoretical or desired social, moral and/or legal concept.

other hand, the argument of the financial costs of regulating pornography could perhaps justify the demand not to be censored, but that is not the reason for which this demand can be classified as a right since it does not provide support for protecting the demand as an instance of the right to free speech. Such reasons can thus be labelled as extrinsic reasons. 63 Halpin, supra n. 5.9, pp. 486–487. 64 Harel, supra n. 5.59, pp. 107 and 109. Harel considers that his theory of intrinsic and extrinsic reasons bridges the difference between the right-holder-centred theories, which argue that the protection of rights is primarily based on their contribution to individuals, and the theories arguing that rights are justified on the basis of their contribution to public goods or those goods that benefit the society as a whole rather than only the rightholder. In Harel’s view the question is essentially merely related to the doubt whether the interests of others are intrinsic (as argued by the latter theory) or extrinsic (as submitted by the right-holder-centred theories). 65 Ibid., pp. 110–112. These submissions are justified by using the example of “contribution to market-place of ideas” as an intrinsic reason to the right to free speech. In particular, in case of an infringement of that right, a judge will not examine the actual contribution of the speech to the market-place of ideas as that will always be used as a reason with a uniform force. 66 See supra 2.

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This protection at the particular level of reduction operates as the requirement for criminal-law protection of a human right as a normative expression of the necessity of legal enforcement and political effectuation of an individual’s freedom and well-being. In other words, the demand for criminallaw protection seeks to protect and support the well-being of a person from the most serious attacks in the same manner in which the inclusive normative expression of a fundamental or core right seeks to protect the individual freedom and well-being in general. Consequently, the demand for effective application of criminal-law mechanisms is justified as an instrumental component of the criminal-law protection of a particular human right. Such demand can therefore be classified as a right derived from a more fundamental or core human right. Thus, for instance, if from the core or fundamental right to protection of physical integrity we reduce a general concrete provision of the right to criminal-law protection from sexual abuse,67 then we can further reduce a particular instance of it as the right-claim to effective application of criminal-law mechanisms. In practical reasoning the latter right-claim will nevertheless operate as a separate and autonomous demand determined by a specific parameter of effectuation.68 At the same time, we could imagine a number of reasons why the demand for effective application of criminal-law mechanisms in human rights protection deserves to be protected since it undoubtedly serves to promote some important related public interests (extrinsic reasons). For instance, one such reason is that the recognition of a broad scale of participatory rights to the victims of crime contributes to a better balance in the logic and structure of criminal procedure.69 67 68

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See further: ECtHR (Judgment) M.C. v. Bulgaria, no. 39272/98, 4 December 2003. Theorists submit that any legal duty can be effectuated by either of the two instances: (1) by averting violations of the legal duty through the preventive steps taken by legal officials; or (2) by subsequent rectification of a violation of the legal duty which has already taken place through some remedial measures such s punishment, compensation or restitution. More frequently, the effectuation of a legal duty occurs through the latter model of effectuation (Kramer and Steiner, supra n. 5.52, p. 286). Note that in the case of Heliodoro Portugal v. Panama the IACtHR stressed that “criminal prosecution is a fundamental means of preventing future human rights violations” (IACtHR(Judgment) Heliodoro Portugal v. Panama, 12 August 2008, para. 189). This argument, however, is valid for adversarial criminal procedure systems. See further: P.G. Cassell, “Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Victims’ Rights Act”, 4 Brigham Young University Law Review (2005), pp. 836–924; E.C. Blondel, “Victims’ Rights in Adversary System”, 58(2) Duke Law Journal (2008), pp. 237–274. However, for an inquisitorial system any such argument of victims’ procedural rights could cause friction (Damaška, supra n. 2.35, p. 201).

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In this context, the theorists of victims’ rights have already observed legal dysfunctions in the absence of the recognised standing to the victims in criminal proceedings, as in particular embracing: (1) turning of the judicial hierarchy upside down, (2) upsetting the hierarchy of laws, (3) corrupting the adversary process, (4) crippling rights enforcement, (5) constraining victims’ ability to advocate for defendants, and (6) diluting constitutional rights.70 However, the reason of contribution to the balance in the logic and structure of criminal procedure merely suggests that the protection of victims’ demand to effective prosecution, which, as we have seen, includes certain participatory rights, is justified – that it deserves to be protected – but not that it should be guaranteed for the right reasons – reasons by virtue of which this demand should be classified as the right-claim to effective application of criminal-law mechanisms. In this connection we can observe that the reason of human rights protection through the mechanisms of criminal justice functions in the juridical reasoning with a uniform stringency independent of the circumstances of the case. In other words, a judge bound by the law of the echr will not examine in each particular case whether the substantive protection of a human right through criminal-law mechanisms can actually be effectuated by the application of those mechanisms. For him or her that is uniform, rule-like regularity.71 On the other hand, a judge who is not bound by such law, in which case the reason of contribution to the balance in the logic and structure of criminal procedure would be the only reason justifying the individual-based demand to effective application of criminal-law mechanisms, will have to assess whether, in the particular circumstances of a case, assenting to a particular victim’s request arising out of the general demand to effective application of criminallaw mechanisms disturbs or enhances the structure of the procedural balance. That can be observed, for example, in the practice of the United States courts. For instance, in the case of State v. Timmendequas72 the New Jersey Supreme Court examined the lower court’s decision not to change the venue of the trial in consideration of the victims right to “be treated with fairness, 70

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D.E. Beloof, “The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review”, 2 Brigham Young University Law Review (2005), p. 260. See further: S. Adžović, The euDirective and the Third Wave of Victims Rights (Master thesis defended in Tilburg University, 2013). Irrespective, at this point, of whether and in what instances the right-claim to effective application of criminal-law mechanism can be restricted. 161 N.J. 515, 737 A.2d 55.

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compassion and respect by the criminal justice system” and not to “be denied the right to be present at public judicial proceedings except when … the victim is properly sequestered in accordance with the law…” Contrary to the defendant’s argument that this right is limited to the possibility to attend a trial, the New Jersey Supreme Court held that the words “fairness and respect” justified the measure of not changing the venue as it could subject the victims to an additional emotional and financial burden. Nevertheless, this was not a right which the victims were able to claim and thus to bring the judicial authorities in the position to consider it and, provided the conditions have been met, to comply with the performative and propositional claiming. This is because a request for the change of venue was confined to the mere consideration of the rights of the victims, or as the New Jersey Supreme Court noted: The [trial] court explicitly stated that it was not favoring the rights of the victims over those of defendant. Rather, it was simply taking their concerns into consideration, as it had not done previously. Taking the concerns of the victim’s family into account does not constitute error, provided that the constitutional rights of the defendant are not denied or infringed on by that decision. As we find no infringement upon defendant’s constitutional rights, we reject this argument. Accordingly, in another case, a relevantly similar provision,73 led the Wisconsin Court of Appeals to conclude that the victims’ rights could not extend to the factual context of the case. In its case State v. Rymer74 the Court held: It is also true that nothing in the victims’ rights law set forth in wis. stat. ch. 950 or elsewhere in the Wisconsin Statutes provides that a trial court should consider a victim’s interests in determining whether a defendant is entitled to a change of venue based on pretrial publicity. However, the record reveals that the trial court did not inquire into the victims’ position until after it had addressed the factors relevant to a motion for change of venue and denied the request. …

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Wisconsin State Chapter 950: Rights of Victims and Witnesses of Crime; 950.4 (1v)(ag) and (b) Basic Bill of Rights for victims and witnesses provides that the victims shall have the right “to be treated with fairness, dignity, and respect …” and “to attend court proceedings in the case …” 74 99-1521-CR.

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Similarly, in the interpretation of Article 1 section  16(b) of the Florida Constitution,75 given by the District Court of Appeal of Florida in the case of Hall v. State,76 in which that court examined a situation where the victims’ relative sat at the same table with the prosecution and was introduced to the jury with the remark of the trial court that his constitutional rights made him more than a spectator and conferred on him the right to assist the prosecution, the judges held: We do not construe Article i, Section 16(b), of the Florida Constitution to permit victims or their families to actively participate in the conduct of the trial by sitting at counsel table or being introduced to the jury. In sum, we can observe that the public services based on the idea of victims’ “rights” such as access to information, compensation, support and better facilities available in courts, are relevant to the extent to which these services are capable of advancing the victims’ position without interfering with the due process rights of the accused or the fundamental facets of the criminal justice system.77 At the same time, all those considerations are irrelevant for answering the question whether the human rights protection through criminal-law mechanisms can actually be effectuated by the application of those mechanisms since, in any particular circumstances of a case, the answer to that question is intrinsically determined by the reasons underlying the protection of the fundamental or core human right at issue. It accordingly follows from the above discussion that whereas the reasons related to effective criminal-law protection of human rights can be observed as intrinsic reasons, which function in practical reasoning acontextually as a uniform, rule-like regularity justifying the demand for effective application of criminal-law mechanisms as a right; other public-related considerations, which are inherently contextual in practical reasoning, such as contribution to the balance in the logic and structure of criminal procedure, do affect the strength of protection that should be granted to that demand, but are not essential to its classification as a right (extrinsic reasons).

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This provision reads: “Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.” 76 579 So.2d 329 (1991). 77 Doak, supra n. 1.15, p. 10.

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Instead of Conclusion

In order to avoid any impeding conceptual fallacy possibly immanent in the above approach to construing the substantive and criterial aspect of the right-claim to effective application of criminal-law mechanisms,78 we should arguably subject the adduced construction of that right to scrutiny of considerations and particular factors which may challenge its theoretically-conceived structure and sustainability in practical reasoning. In this connection it should be observed that in the above discussion we have conceived the substance of the legal relationship construed within the concept of procedural obligation in human rights law as a duty of effective application of criminal-law mechanisms, denoted as φ. The discussion has further shown that this assertion should be specified by designating the individual-­based aspect of that duty as h(φ), which, in practical reasoning, functions concurrently with the public-based duty of p(φ). Eventually, however, we have limited our discussion only to ascertaining the legal nature of the former aspect of the duty at issue which was conceived in the following form of right assertion: “X has a right that Y h(φ)” – where X denotes an individual, holder of human rights and beneficiary of corresponding duties; Y denotes any of the competent state authorities, or simply the state; and h(φ) designates individually-required action of effective application of criminal-law mechanisms in human rights protection. This shows that the induced conclusion on the substantive and criterial aspect of the right-claim to effective application of criminal-law mechanisms, based on the observed form of right assertion, can be considered sustainable in practical reasoning only to the extent that h(φ) and p(φ) can be conformed within the complete structure of the duty of effective application of criminallaw mechanisms (denoted as φ). In other words, an irreconcilable conceptual divergence of h(φ) and p(φ) within the general structure of φ would lead to a conclusion of an unsustainable theoretically-conceived structure in practical reasoning.

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In challenging the possibility of extended generalisation of Harel’s theory, Halpin contends that it provides an easy ticket to recognition of a right without subjecting it to scrutiny of other factors which might go against its recognition as an enforceable right. On the other hand, Halpin sumbits, that theory provides an easy justification for the continuing status of recognised enforceable rights by drawing attention away from those considerations and factors which might challenge the status quo and the continuing protection of the interests at issue (Halpin, supra n. 5.9, pp. 492–493).

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This would consequently negate the sustainability of the very concept of procedural obligation in human rights law, which, as seen in the preceding discussion, nevertheless exists and operates as a doctrinal conception with very practical and specific implications in various aspects of the prosecutorial reality. Moreover, we would thereby risk running into a logical inconsistency given that the necessity of effectuation of the substantive criminal-law protection of a particular right requires an effective application of criminallaw mechanisms securing that such protection actually operates in practice. It could be therefore said that negating h(φ) inevitably leads to the negation of the necessity of human rights protection through criminal law and that any such particular aspects implied in human rights protection are relevant only to the extent to which they form an instrumental value of the public interest. A further deduction in this direction could easily lead to the negation of the very conception of judicially-protected human rights that, in situations of conflict, perform the function of protection of individuals’ interests or choices from being overridden by considerations of collective utility.79 We should thus attempt to assign h(φ) to the particular instances of p(φ) and to examine methods of their harmonisation into the complete structure of φ. In the concrete case, this will be done by assigning the human rights aspects of the duty to effective application of criminal-law mechanisms (conceived as the right-claim to effective application of criminal-law mechanisms) to two particular aspects of the public-based requirement related to the administration of criminal justice: (1) the exercise of discretion in criminal prosecution; and (2) the protection of the rights of the accused.

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A. McHarg, “Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights”, 62(5) The Modern Law Review (1999), p. 672.

chapter 6

Conceptualising Variances: The Right-claim to Effective Application of Criminal-law Mechanisms and the Public Prerogative of Criminal Prosecution 1

Prosecutorial Discretion

1.1 Introduction In order to observe variances between the human rights requirements and the exercise of discretion in the administration of criminal justice we could return to the example advanced in the previous section. To recall, in the relationship observed in the example we have had an individual (victim of an offence Mary) who insists on the criminal prosecution of the perpetrator of a violent act against her (John) which is sufficiently serious to bring Articles 3 and/or 8 echr into play, and we have had a state whose criminal justice authorities, for some arbitrary or erroneous reason, failed to effectively prosecute John. This example does not necessarily imply variances between criminal law and human rights law requirements as the common denominator of conversion lies in the “arbitrary and erroneous reasons” which would, in any case, suggest a failure of the state to meet its legal obligations.1 But what if we remove the qualification of “arbitrary or erroneous reason” from the discourse of the authorities’ decision-making and replace it by some “public interest considerations.”2 Put differently, what if the criminal justice authorities simply decided to exercise their discretion not to prosecute John (by granting him immunity by, for instance, conferring the status of a crown witness on him)? On the conceptual level, an observer indoctrinated by conventional crimi­ nal law considerations would see no issue in this respect. For him or her prosecution is a public-based prerogative which reflects individual interests to 1 Nevertheless, although there is no instrumental divergence, there is a conceptual one since from the perspective of human rights law prosecution is a mechanism of enforcing or remedying Mary’s infringed (substantive) right, whereas from the perspective of criminal law prosecution is a mechanism of upholding public interest considerations implied in the applicable criminal law provision (naturally encompassing also Mary’s rights and interests but in an abstract and remote manner). 2 Irrespective, at this point, of the principle underlying the charging process in the legal system at issue.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_007

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the extent to which they conform to the perceived policies of criminal justice administration. At the same time, however, his or her counterpart well-versed in human rights law could see such an action of the criminal justice authorities as being at odds with the state’s procedural obligation to effectively investigate and prosecute violent human rights offences. The legal sphere in which the latter observer operates is hostile to any exercise of discretion that could imperil effective investigation and prosecution of a human rights offence. In other words, the only discretion in the decision-making that he or she could accept must be capable of showing that the criminal justice authorities have effectively demonstrated that unlawful acts impairing the rights of an individual can in no way be tolerated.3 From the latter perspective we could be contemplating a non-derogable obligation to prosecute human rights offences.4 Accordingly, under such approach, when discussing prosecutorial discretion, a clear line of distinction must be drawn between the instances in which discretion is allowed and cases where the decision to prosecute is mandated by virtue of compliance with the international human rights requirements, in the concrete case under the echr.5 The acceptance of this doctrine in the practice of international human rights adjudication can be observed in the ComAT country monitoring. Specifically, the ComAT expressed certain hesitations with regard to the possibility in the criminal justice system of the Netherlands according to which prosecution could be dispensed of for reasons of public interest. However, the hesitant ComAT members were immediately reassured by the Netherlands delegation whose members stated that, whereas the principle of expediency was a legitimate principle of the charging process, they could “not imagine any case where prosecution of torture would be excluded on such grounds.”6 Later on, they further explained that, although legally possible, in practice the room for manoeuvre on the basis of the principle of expediency in cases of torture was non-existing.7 Similarly, in its considerations on the country report of France, the ComAT expressly stated that it considered the principle of expediency of prosecution to be “clearly in conflict” with the requirement for an investigation under Article 12 cat.8 3 ECtHR (Judgment) Ateşoğlu v. Turkey, no. 53645/10, 20 January 2015, para. 28. 4 Y. Naqvi, “The right to truth in international law: fact or fiction?”, 88(862) International Review of the Red Cross (2006), p. 265. 5 Rogers, supra n. 1.10, p. 776. 6 Ingelse, supra n. 3.221, p. 347. 7 Loc.cit. 8 Ibid., p. 348.

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When the same approach is applied to other forms of ill-treatment, including private violence, we find the same considerations, which were expressed by two concurring judges in the ECtHR case of Biser Kostov v. Bulgaria as follows: Unaccountable [prosecutorial] discretion renders meaningless the positive obligation to conduct an investigation capable of leading to punishment and, in practice, relegates the victim to the position obtaining before the development of the positive obligation doctrine in the context of Articles 2 and 3.9 On the other hand, in a ECtHR case concerning the alleged failure of the criminal justice system to secure effective protection from indecent behaviour under Article 8 echr, the dissenting judges noted: Finally, we note that in the present case the stepfather could have been prosecuted on other grounds, namely, on account of attempted child pornography, though no charges were eventually brought. Of course, positive obligations are an obligation of means, not of result; they do not imply that a person must be convicted in all circumstances. There may be good reasons why a prosecution is not brought, such as, for example, where an offence is time-barred or where there is insufficient evidence upon which to prosecute. We can also accept that the Public Prosecutor’s Office is free to prosecute or not according to the ‘principle of opportunity’ (principe d’opportunité des poursuites) well known in criminal procedures in Europe. But we have not been made aware of any such reasons – and the fact remains that the stepfather was not prosecuted.10 Likewise, in the case of Armani Da Silva v. the United Kingdom, concerning the refusal to prosecute the state officials involved in an mistaken killing of an individual during a police operation, the ECtHR stressed that a deference must be given to the domestic authorities in taking individual prosecutorial decisions. However, in the case at issue the decision not to prosecute was based on a thorough investigation, which led a prosecutor to consider all the facts of the

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ECtHR (Judgment) Biser Kostov v. Bulgaria, no. 32662/06, 10 January 2012, separate opinion of Judges Z. Kalaydjieva and V.A. De Gaetano. 10 ECtHR (Judgment) E.S. (Söderman) v. Sweden, no. 5786/08, 21 June 2012, Judges D. Spielmann, M. Villiger and A. Power-Forde.

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case to be insufficient to meet the threshold evidential test in respect of any criminal offence.11 These observations show that there is, on the one hand, a certain level of perplexity in conceiving the concept of prosecutorial discretion from the perspective of procedural obligation in human rights law and, on the other hand, in conceptualising the effects of human rights requirements on the exercise of discretion in the charging process of criminal procedure. In the context of these variances in conceptualising the exercise of discretion, this section will attempt to assign the human rights element to the charging process in the administration of criminal justice. However, before proceeding with the discussion in the concrete context of prosecutorial discretion, an excursus on possible understandings of the concept of discretion in general is in order. 1.2 Discretion There should be no conceptual or instrumental difficulties or impeding doubts if at this point we set out the following hypothesis: the human rights aspect of the duty to effective application of criminal-law mechanisms is one of the relevant standards, determined by international human rights law and practice implemented in the relevant domestic constitutional discourse, to which a decision-making process in the exercise of criminal prosecution must conform. This, of course, should not be understood as implying that the human rights aspect of the duty to effective application of criminal-law mechanisms is the only relevant standard or that the applicable human rights discourse is the only conferring authority determining the charging process. Similarly, at this point we can leave open the question what the weight of the human rights standard is in a possible conflict with public interest considerations. This is simply to say that the concept of discretion in a decision-making process in the exercise of criminal prosecution exists as an open area surrounded by a belt of restrictions,12 one of which is imposed by the authority of human rights law. Before proceeding into the implications of this hypothesis in the practical reasoning of criminal law, two more abstract clarifications are required. Firstly, what do we mean by saying that a particular standard sets restrictions on an area of discretion; and secondly, what is the flexibility with which the standards determining an area of discretion operate. In answering our first question, we should at the outset make it clear that exercising discretion in the charging process of criminal law essentially means 11

ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, paras. 259 and 284. 12 Dworkin, supra n. 5.5, p. 31.

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the making of a responsible choice by a competent public office between the decision to prosecute and not to prosecute. This choice, however, is not a reflection of any personal whim or desire, but rather a selection of appropriate means within an area determined by specific rules. It can be viewed, in the words of Hart, as a certain kind of deliberation guiding choice for a responsible public official. Where the deliberation guiding choice is determined by rigid standards it becomes possible to conceive cases where there could be no room in the choice of appropriate means.13 This is particularly the case where the aims are clear and obvious. In these instances, we essentially remove arbitrariness and lack of standards which usually, at least in the ordinary understanding of the term, lurk around the edges of discretion.14 Thus, for instance, if the aim is to give effect to a substantive human right by the procedural means of effective application of criminal-law mechanisms (notice that this does not necessarily have to imply official criminal prosecution) than the methods of reaching that aim are obvious. The only room for choice would exist with regard to the question of what is effective application of criminal-law mechanisms in the given circumstances.15 On the other hand, some legal philosophers submit that it is inevitable that we should understand discretion against the features of the context in which

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H.L.A. Hart, “Discretion”, 127 Harvard Law Review (2013), pp. 657–658. Hart gives the following example. Imagine a pencil with which you are writing breaks and you need to sharpen it. You go to a drawer where you find a knife, three spoons and two forks. You, naturally, choose a knife. This is not because you like it more than a fork but because if you want to sharpen your pencil this is the only obvious way to do it. The choice of a knife therefore is not really exercise of discretion but the only sensible decision determined by a clear aim. G.E. Lynch, “Our Administrative System of Criminal Justice”, 66 Fordham Law Review (1998), p. 2136. An illustrative example in this respect is the ECtHR case of Dimitrova and Others v. Bulgaria where a violation of the procedural aspect of Article 2 echr was found, inter alia, on account of the domestic authorities’ faulty use of discretion by discontinuing the criminal prosecution by concluding a plea bargaining agreement with the perpetrator. The ECtHR observed several pieces of evidence and available information not taken into account when concluding the plea bargaining agreement and thus it found such procedural course ineffective and contrary to the respondent State’s procedural obligation (Dimitrova and Others v. Bulgaria, no. 44862/04, 27 January 2011, paras. 78–82). It follows that the use of plea bargaining was not excluded as a choice in the domestic authorities’ compliance with the procedural obligation but the fact that its use in the circumstances ran counter to the requirement of effectiveness brought about a violation of the echr.

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it is used, which lessens the discussed rigid narrowing of choice.16 Ronald Dworkin, in his seminal thesis on the three senses of discretion, submits that discretion can be used in the weak and strong sense. In the weak sense, by using the term discretion, we are essentially saying that the standards which an official must apply demand the use of judgment as they cannot be applied automatically. This is in particular so when the context is not clear and when the audience is not familiar with all the relevant pieces of information. There is another weak sense of the term discretion which we use to say that there is no higher authority that can review and reverse a decision of an official. By contrast to these two weak senses, we use the term discretion in a strong sense to say that on some issue an official, who should apply the standards set out by an authority, must use his or her judgment in applying those standards since he is not rigidly bound by them.17 In addition to Dworkin’s thesis, we can observe that in a context of the proportionality of constitutional rights, Robert Alexy differentiates substantial discretion, implying instances when something is neither command nor prohibited by the constitution, and epistemic discretion, concerning instances when it is uncertain what is prohibited or mandated by the constitution.18 For the purpose of this study we need not dwell any further on Dworkin’s weak senses of the term discretion or Alexy’s epistemic discretion. We can assume that in contemporary legal discourse all the relevant pieces of information on compliance with the human rights standards are in the domain of knowledge of the audience. And, at least at this point, the question of the reviewing authority should not worry us in particular as, in any case, we have already conceptualised the quasi-criminal jurisdiction of international human rights courts.19 16

See further: K.E. Himma, “Judicial Discretion and the Concept of Law”, 19 Oxford Journal of Legal Studies (1999), pp. 71–82. 17 Dworkin, supra n. 5.5, pp. 31–33. 18 R. Alexy, “The Absolute and the Relative Dimension of Constitutional Rights”, Oxford Journal of Legal Studies (2016), p. 13. 19 Notice that in the context of his “hierarchical ideal,” where all decisions are subjected to superior review on a regular and comprehensive basis, Damaška considers official discretion to be anathema since any wide distribution of unreviewable authority would undermine the entire authority structure (Damaška, supra n. 2.35, p. 201). This is, of course, not to say that there is always regular and automatic review of the decision not to prosecute but to underline that conceptually the mere existence of a higher reviewing authority, which will regularly be the case, puts the relevancy of Dworkin’s second aspect of the weak sense of discretion into question, when observed from the perspective of issues examined in this study.

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Turning now to the strong meaning of the term discretion, we should observe that Dworkin excludes the possibility of viewing discretion as a license not subjected to any criticism. The exercise of discretion is, just like any other person’s act, subjected to standards of rationality, fairness and effectiveness. In other words, to exercise discretion in the strong sense does not mean that an official can ignore the requirements of sense and fairness but only that there is no rigid standard provided by an authority determining his particular actions. In such a case, a decision-maker can be criticised for having made a mistake but not for depriving an individual of what is due to him or her.20 If we conceive the quest for justice as the fundamental principle governing the action of criminal prosecution21 and once we have agreed that seeking justice means not only upholding an implied public interest but also enforcing the criminal-law protection of human rights, then we have conceptually returned to what we have observed above with regard to the narrower and rigid contemplation of the term discretion. In other words, in the context of discretion in making decisions in the charging process, an official could tumble in his steps to secure effective application of criminal-law mechanisms (as in this respect he or she has discretion) but it would not mean that he or she is vested with discretion to decide whether to enforce the substantive criminal-law protection of a human right by applying relevant criminal-law mechanisms, as that would imply a possibility of depriving the right-holder of what is due to him or her. We therefore see that the human rights aspect of the duty to effective application of criminal-law mechanisms creates two echelons in the belt of restrictions surrounding the open area of discretion in a decision-making process of criminal prosecution. One echelon, concerning the duty to enforce criminal-­ law protection (conceived in this study as the question of applicability of criminal-law mechanisms), operates as a set of rigid standards of the deliberation guiding choice leaving no or very restricted range of appropriate actions. The second echelon, concerning the question of effectiveness of application of criminal-law mechanisms, implies that the competent official should use his or her judgment in applying the relevant standards of effectiveness set out in human rights law. Nevertheless, it would be illusory to assume that the requirements of legal standards, determined by a particular authority, function as complete and fixed variables. Consequently, in principle, the belt of restrictions may expand 20 Dworkin, supra n. 2.35, p. 33. 21 K.J. Mellili, “Prosecutorial Discretion in an Adversary System”, Brigham Young University Law Review (1992), p. 670.

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or shrink. Here we should recall that where legal questions are fully controlled by law the belt of restrictions is narrow. Conversely, where legal questions turn on some evaluative arguments the belt of restrictions is wider. Hence, where law relies on non-source based considerations, the rules become defeasible as the understanding of law requires us to see what the competent courts would say.22 This in particular concerns moral considerations such as fair, reasonable or just which, given their vagueness, confer wide discretion. Nevertheless, the room for choice will proportionally shrink as the moral considerations become clearer.23 The same holds true for the requirement of effectiveness in the context of the right-claim to effective application of criminal-law mechanisms which is sometimes viewed as a set of undifferentiated procedural requirements.24 The difficulty that such a position creates is that it confers wide discretion on the reviewing authority to assess compliance with the relevant standards by the decision-making authority. At the same time the decision-making authority will only be able to understand what the applicable law requires once it has seen what the reviewing authority had to say. The decision-making authority thus, in applying the law, faces serious perplexity contradicting a logical premise according to which to expect the decision-maker to become aware and apply the relevant standards presupposes that the decision-making process requires, at an initial stage, the formulation of criteria for the recognition of their relevance.25 The fact that the reviewing authority competent to say what the law requires is an international human rights court and that the decision-making authority is a specific body of the state’s judicial apparatus further complicates the matter. Accordingly, any contemplation of undifferentiated requirement of effectiveness must be taken with a particular caution, particularly given that the standards of effectiveness of application of criminal-law mechanisms have 22 23 24

25

L. Green, “Three Themes from Raz”, 25(3) Oxford Journal of Legal Studies (2005), pp. 504–505. Ibid., p. 505. This concerns the statement such as that “the nature and degree of scrutiny which satisfies the minimum threshold of the investigation’s effectiveness depends on the circumstances of the particular case [which] must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work [making it] [im]possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria” (ECtHR (Judgment) Velikova v. Bulgaria, no. 41488/98, 18 May 2000, para. 80). D. Herling, “Weight in Discretionary Decision-Making”, 19 Oxford Journal of Legal Studies (1999), p. 591.

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become, as seen in this study, sufficiently clear to secure normal operation of the exercise of discretion in the decision-making process of criminal prosecution. This brings us to the second question set out above related to the flexibility with which the standards determining an area of discretion operate. As it was already seen, exercising discretion generally means giving weight to a particular argument in decision-making. This somewhat simplistic approach can be nuanced by referring to what is suggested by language used in observing a certain factor in the decision-making process. Specifically, as David Herling explains, to consider a factor means to note it and to reflect on its significance. To have regard to a factor implies that it is the object of concern exceeding the level of mere recognition, while the expression to take into account suggests that a factor, together with other relevant factors, exerts certain influence on the decision-maker.26 At the same time there may be factors which assume particular significance in decision making. Such factors are certainly human rights requirements which must hold a special place in the decision-making process so as to ensure that they are not put in jeopardy.27 Herling further explains that the relevance of a factor in decision-making, observed in the context of this study as flexibility of the governing standards of discretion, is principally determined through two types of weight. In p ­ articular, to weigh a factor means to establish with which force it ­advocates a particular solution set out as the problem that needs to be resolved by the ­decision-making process. Any factor possesses inherent and relative weight. Inherent weight is the relevance which the decision-maker finds in or a­ ttributes to a factor when considered in isolation from other factors. Relative weight follows from a comparison of multiple factors. It is a measure of impressive capacity of a single factor viewed against other factors favouring a different outcome. Accordingly, Herling submits, a reasonable decision will be the result of weighing which must proceed in two stages. In the first stage the persuasive capacity of a factor must be judged individually and then, in the second stage, differentially in the light of judgments made with regard to the competing factors.28 As it arguably follows that the ascertaining of weight to be given to a factor is intrinsically related to the question of flexibility with which the factor operates in the practical reasoning of a discretion decision-making process, the further discussion in this study will be focused on weighing the human rights 26 27 28

Ibid., pp. 584 and 586. Ibid., p. 590. Ibid., pp. 592–594.

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factor in the exercise of discretion in the decision-making process of criminal prosecution. Given that the ascription of inherent weight to the human rights factor in practical reasoning was observed in Chapter 4, the discussion that follows will attempt to calculate the relative weight of the human rights factor against the other factors in criminal prosecution that influence the decision making process in a particular case. The emphasis is on the content of calculation while the particular procedural aspects of calculation will be contemplated in the next Chapter. Before embarking on the calculation of relative weight of the human rights factor we should fix the nature and content of other competing factors, which shall be done by observing them in the context of the exercise of prosecutorial discretion. 1.3 Discretion in the Charging Process As generally conceptualised in legal theory, there are two alternative ­models for the charging process: the principle of mandatory prosecution ­(Legalitätsprinzip; le principe de la legalité) and the principle of expediency (­Opportunitätsprinzip; le principe l’opportunité des poursuites), which can be differentiated with regard to the extent of freedom vested in the decision-maker29 when deciding whether to prosecute.30 In most general terms, the principle of mandatory prosecution is understood as a legal obligation (the legality principle) of the prosecutor to prosecute every case in which there is sufficient evidence for the relevant level of probability that a criminal offence has been committed. The role of the prosecutor is limited to the assessment of evidence and the (non)existence of 29

30

Note that the decision-maker in this context is the competent prosecutor when the function of decision-making is observed from the perspective of domestic criminal law (see discussion on the police discretion in the criminal process: J. Goldstein, “Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice”, 69(4) The Yale Law Journal (1969), pp. 543–594). However, when the function of criminal prosecution is observed from the perspective of the State’s compliance with its procedural obligation in international human rights law, then the national authority exercising the function of criminal prosecution should not be differentiated as, in any case, only states can be responsible for violations of international human rights. See further on the question of the State’s responsibility in international law: E.B. Weiss, “Invoking State Responsibility in the Twenty-First Century”, 96 American Journal of International Law (2002), pp. 798–816. M.R. Damaška, “The Reality of Prosecutorial Discretion: Comments on a German Monograph”, 29 American Journal of Comparative Law (1981), p. 120.

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legal hindrances prohibiting prosecution. Once he or she finds that both criteria have been met there is no further room for decision whether to prosecute or not as the belt of restrictions on any such discretion is tightly constrained by law. Hence, the prosecutorial power is confined to the existence and utilisation of certain definite rules.31 The underlying logic behind the principle of mandatory prosecution is that law should be interpreted and applied without any intrusion of political considerations.32 The only governing authority may be formal science of law which is to serve as a central guarantee against state interference in the administration of justice. Accordingly, criminal law must be administered by general rules detached from any considerations of equity. And charging decisions should never be based on considerations such as equity or policy but should remain determined solely by the question of legal sufficiency.33 From 31

D. Kyprianou, The Role of the Cyprus Attorney General’s Office in Prosecutions: Rhetoric, Ideology and Practice (Heidelberg, Springer 2010), pp. 18–19; J.P. Tak (ed.), The Legal Scope of Non-prosecution in Europe (Helsinki, heuni 1986), pp. 27 and 30. 32 The roots of the principle of mandatory prosecution, dating back to the middle of the nineteenth century, have been construed in an attempt to devoid the state administration of any power of political abuse. In countries which are the champions of this principle such as Germany it also relates to the establishment of the office of the prosecutor and the necessity to entrench the public monopoly over the criminal process by dividing it between the prosecutor, who should investigate and charge, and the judge, who should conduct the proofs and adjudicate. Moreover, the creation of the office of the prosecutor and setting out its organisational scheme as bureaucratic hierarchical prosecutorial corps opens the door for a political officer of the state government to abuse its powers of prosecution under political pressure and therefore the principle of mandatory prosecution was designed to prevent that pressure (see further: J.H. Langbein, “Controlling Prosecutorial Discretion in Germany”, 41(3) The University of Chicago Law Review (1974), pp. 443–450; H.H. Jescheck, “The Discretionary Powers of the Prosecuting Attorney in West Germany”, 18 American Journal of Comparative Law (1979), pp. 508–517.). A ­ ccording to the comparative reports the following legal systems in Europe have traditionally ­adhered to the principle of mandatory prosecution: Austria, Bulgaria, Germany, Finland, Greece, Hungary, Ireland, Italy, Lichtenstein, Poland, Portugal, Spain, Sweden, Switzerland (majority of cantons), Turkey, the countries of the former Soviet federation, Slovakia and the Czech Republic and the countries of the former Yugoslavia. On the other hand, the criminal justice systems traditionally adhering to the principle of expediency are: Belgium, ­Cyprus, Denmark, France, United Kingdom, Iceland, Luxembourg, the Netherlands, Norway and some cantons of Switzerland. See further: Tak, supra n. 6.31; T. Vander Beken and M. Kilchling (eds.), The Role of the Public Prosecutor in the European Criminal Justice Systems (Brussels, kvab 2000). 33 Tak, supra n. 6.31, p. 29.

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this perspective, any other consideration in exercising prosecution could only mean impunity and lead to legal uncertainty.34 Conversely, the principle of expediency allows the prosecutor what is sometimes referred to as unfettered or absolute discretion,35 i.e. the power to decide whether, in the circumstances, it would be expedient to prosecute given the public interest involved in the prosecution of the criminal offence at issue.36 Accordingly, even when there is sufficient evidence for prosecution and where no legal hindrances impeding proceedings exist, the prosecutor may decide not to exercise the power of prosecution. In general, when exercising discretion, the prosecutor either declines to prosecute (issues non-prosecution decision) or engages other alternative solutions within the criminal justice systems,37 such as the models of participative justice, consensual justice or negotiated justice.38 This exercise of discretion may be viewed in its positive and negative form. In the positive sense it means that non-prosecution is the rule and prosecution appears only as an exception to this rule. It follows that an infringement of law is not in itself sufficient to trigger prosecution as the competent public office is empowered to shape crime control policy by deciding whether to prosecute or not. And in this case, law merely provides the legal basis for such a policy. On the other hand, in the negative form of expediency, prosecution generally takes place as the crime control policy is predetermined by law. The application of expediency in this case is aimed at alleviating the consequences of rigid rules on prosecution.39 The central reason justifying adherence to the principle of expediency is the incentive to avoid the negative counter-effects of the rigid application of law which, in some cases, may lead to injustice. Moreover, one could argue that an absolute administration of justice deprives the criminal norms of their exceptionally character as criminal prosecution becomes an ordinary occurrence in the administration of justice.40 From this perspective, the statutory obligations are inherently overly inflexible to respond to relevant crucial distinctions that appear across cases. And 34 E. Mathias, “Poursuive autrement”, 159 Petites affiches (1999), p. 4. 35 Guinchard and Buisson, Procédure Pénale, 4e édition (Paris, LexisNexis 2008), p. 709. 36 Kyprianou, supra n. 6.31, p. 19. 37 Guinchard and Buisson, supra n. 1.3, p. 708. 38 See further: F. Tulkens, Y. Cartuyvels and I. Wattier, “Negotiated Justice”, in M. DelmasMarty and J.R. Spencer (eds.), European Criminal Procedures (Cambridge, Cambridge University Press 2002), pp. 646–647. 39 Tak, supra n. 6.31, p. 28. 40 Ibid., p. 29.

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a kind of uniformity that excludes a more particularistic focus on an actor’s blameworthy conduct can be only perceived as bad uniformity, which is therefore damaging and often viewed as the assertion of an illusory outcome.41 In the practical reasoning the exigencies of discretion in the context of the charging process extend over a wide range of reasons.42 This includes instances such as balancing between the aims of prosecution and punishment and the likely costs and expenses of the proceedings,43 or the resource management in the law enforcement44 and the penitentiary system,45 as well as the recognition of the necessity to apply pre-conviction pardons so as to accommodate both the rights and interests of the perpetrator and the relevant public interest involved.46 Now when the general premises of the two models for the charging process have been succinctly observed, we should return to what was observed above with regard to the position of the human rights factor in the belt of restrictions surrounding the open area of discretion in a decision-making process of criminal prosecution. We have seen that the human rights element of the duty to effective application of criminal-law mechanisms operates as a set of rigid standards of the deliberation guiding choice leaving no or very restricted range of appropriate actions with regard to the duty to enforce substantive criminal-law protection of a human right at issue. The only discretion which remains concerns the question of effectiveness of application of criminal-law mechanisms and it implies the duty for a competent official to use his or her judgment in applying the relevant standards of effectiveness set out in international human rights law. In any case, the principle of expediency, generally viewed as unfettered or absolute discretion in the charging process, would run counter to the limits of discretion set out by the relevant human rights requirements. Indeed, one 41

J. Bowers, “Legal Guilt, Normative Innocence, and the Equitable Decision not to Prosecute”, 110(7) Columbia Law Review (2010), pp. 1673–1678. 42 See, for instance, in the context of the United States criminal justice system: R. Heller, “Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion”, 145 University of Pennsylvania Law Review (1997), p. 1326. 43 Rogers, supra n. 1.10, p. 775. 44 Ashworth, supra n. 1.13, p. 603; See further: coe Recommendation No. R (87) 18 of the Committee of Ministers to Member States concerning the simplification of criminal justice of 17 September 1987. 45 R.L. Misner, “Recasting Prosecutorial Discretion”, 86(3) Journal of Criminal Law and Criminology (1996), pp. 717–777. 46 J. Pradel, Procédure Pénale, 16e édition (Paris, Éditions Cujas 2011), p. 514.

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could arguably assert that the principle of mandatory prosecution is better suited in meeting the state’s procedural obligation in international human rights law.47 What prevents us from making such a resolute conclusion at this point is the fact that we have observed two ideal models of the charging process whereas in reality the charging decisions operate within variant models of the principle of mandatory prosecution and the principle of expediency, where each of the models discloses some features of the other.48 Two premises can therefore be made: firstly, the expediency model is adequately adept at accommodating the human rights factor in the decisionmaking and thus capable of reducing or removing the possible conflict with the human rights requirements, and secondly, if we could find a converging element of the two models we would be able to set out a common standard for calculating the relative weight of the human rights factor in criminal prosecutions in general. The first interrogation essentially, from the perspective of criminal law, turns around the question of the capacity of the principle of expediency to accommodate the rights and interests of victims in the decision-making. A normative analysis of the European criminal justice systems reveals that the initiatives for the strengthening of victim’s legal position have created a significant impact on the utilisation of prosecutorial discretion so that the prosecutor, when exercising his or her discretionary prerogatives in deciding whether to prosecute or not, must take into account the interests of the victim. Thus, in general, when deciding whether to prosecute, the prosecutor must consider both the public interest and the interests of the individuals involved in a case.49 Indeed, it would be next to impossible to draw a clear line between the interests of the victim and the public interests such as for example achieving deterrence of crime and creating a criminal justice system more responsive to the public. The conceptual fallacy of any attempt to the contrary can be observed 47

M.S. Myers, “Prosecuting Human Rights Violations in Europe and America: How Legal Systems Structure Affects Compliance with International Obligations”, 25 Michigan Journal of International Law (2003), pp. 239–244. 48 Damaška, supra n. 6.30, p. 121. 49 Tak, supra n. 6.31, p. 24. See further, for the criminal justice system in England and Wales and France respectively: C. Lewis, “The Prosecution Service Function within the English Criminal Justice System”, p. 158; B.A. de Cavarlay, “The Prosecution Service Function within the French Criminal Justice System”, pp. 204–205, both in J.-M. Jehle and M. Wade (eds.), Coping with Overloaded Criminal Justice Systems: The Rise of Prosecutorial Power Across Europe (Heidelberg, Springer 2006).

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through what an author described as differential nature of victim influence.50 The consequential line of influence starts by the relation of the victim to the crime, which then defines his or her relation to the prosecutor and, ultimately, the manner in which discretion is exercised. For instance, in cases of violence and property crime the victim’s complaint initiates and sustains the case. That is to say that if the victim does not institute the case or abandons it by declining to cooperate further, the case usually has little or no prospect of success and therefore the victim’s private decision inevitably influences the prosecutor’s.51 The same is not, however, true for victimless crimes (such as illegal gambling) where the groups possibly interested in enforcement are so diverse that a public office must be properly regarded as representative of the public interest rather than any group that could be claiming to represent it. It follows that in cases without identifiable victims the prosecutor’s initiative is critical. However, in cases with identifiable victims, the prosecutor generally acts on the matters brought to him or her and his or her actions are subjected to “victim nullification,” that is to say the possibility for the victim not to report a case or to abandon it for whatever reason.52 This induces the necessity for the expediency charging model to take into account the victim position in the process of individualisation of cases in the exercise of prosecutorial discretion.53 Accordingly, legal systems adhering to the principle of expediency, at least in theory, provide an opportunity for the victim to challenge the decision not to prosecute either by private prosecution or through an appeal procedure,54 which accommodates the victim’s position in the exercise of discretion55 and inevitably limits the prosecutorial discretion

50

A. Goldstein, “The Victim and Prosecutorial Discretion: The Federal Victim and Witness Protection Act of 1982”, 47(4) Law and Contemporary Problems (1984), pp. 226–227. 51 See further: Thomas, supra n. 1.47, pp. 247–276. 52 Goldstein, supra n. 6.50, pp. 227–228. This is not to say, as Goldstein explains, that the prosecutor cannot force the victim to cooperate but such an action would inevitably open a number of questions from the perspective of victim’s participatory rights and in any case imperil the desirable outcome of the prosecution. 53 See further: Bowers, supra n. 6., p. 1678; Ashworth, supra n. 1.13, p. 598. 54 See further: M. Wade, “The Power to Decide – Prosecutorial Control, Diversion and Punishment in European Criminal Justice Systems Today”, in J.-M. Jehle and M. Wade (eds.), Coping with Overloaded Criminal Justice Systems: The Rise of Prosecutorial Power Across Europe (Heidelberg, Springer 2006), pp. 64–65. 55 See the discussion in: R.L. Aynes, “Constitutional Considerations: Government Responsibility and the Right Not to be a Victim”, 11 Pepperdine Law Review (1984), pp. 93–95.

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in the charging process.56 Consequently, as this is an intrinsic element of the mandatory prosecution ideal,57 the opportunity for the victim to challenge the prosecutorial discretion narrows the divergence between the two models of the charging process. This brings us to the second question observed above concerning the converging element of the principle of mandatory prosecution and the principle of expediency. It can be readily accepted that there could be multiple converging elements between the two models of the charging process which will more or less distinctively outline the narrowing of the gap in the decision-making. For instance, subjecting the decision-making in any of the models to a hierarchical review would in terms of political ideology of the organisational authority contemplate the same bureaucratisation characteristic.58 However, this study will not be concerned with idiosyncratic cases but rather search for a common underlying factor determining the prosecutorial decision-making in the principle of expediency and the principle of mandatory prosecution. The decision-making in the expediency model is a two-step procedure consisting of: (1) an assessment of sufficiency of evidence guaranteeing a satisfactory prospect of success, and (2) ascertaining whether prosecution is expedient in the case given the public interest involved. In general, another sub-set of considerations can be considered to precede the first interrogation and that is the question whether all necessary formal conditions for prosecution are met.59 However, as this aspect of assessment is of an objective nature it will be disregarded in further discussion. The evidentiary sufficiency and the public interest considerations are both susceptible to the expediency argument. Indeed, the interpretation of the facts of the case and the assessment of the supporting evidence are inevitably affected by the prosecutor’s opinion as to the expediency of prosecution. It accordingly follows that the question of evidentiary sufficiency is an assessment of a (partly) discretionary nature. In other words, the basic principles of contemporary criminal procedures would be contradicted by a decision to prosecute which is in an abstract sense in the public interest but at the same time short of the account of the sufficiency of evidence.60 56

R.S. Frase, “Comparative Criminal Justice as a Guide to American Law Reform: How do the French do it, How can we Find out, and Why Should we Care”, 78(3) California Law Review (1990), pp. 613 and 616. 57 Damaška, supra n. 6.30, p. 122. 58 Ibid., p. 138. 59 Ashworth, supra n. 1.13, p. 595; Rogers, supra n. 1.10, pp. 777–778; Tak, supra n. 6.31, p. 50. 60 Ibid., p. 52.

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If we now turn to the mandatory prosecution model of the charging process, and after we disregard the objective question of formal conditions for prosecution, we see that the distinctive element in the decision-making, namely the question of evidentiary sufficiency, is inevitably marked by an element of expediency, that is to say discretion in deciding whether the perceived end of prosecution can be attained by the level of evidence at the disposal. When the perceived end of prosecution is (some sort of) a public interest then the public interest element pierces the rigidity of the prosecutorial decision-making in the mandatory prosecution model. Moreover, whenever the substantive crime definitions are soft-edged, ascertaining whether an act constitutes a crime may involve a great deal of flexibility of the prosecutorial judgment exercised under the pretext of objective legal conditions. Accordingly, a prosecutor in a mandatory prosecution model has a wide discretion in deciding how many and what charges to press,61 which can be respectively determined as horizontal and vertical discretion, as commonly understood from the perspective of the principle of expediency.62 After observing these specific logically-induced concessions of the mandatory mode of the charging process to discretion and expediency in decisionmaking, we can turn to the wider picture in which discretion operates in the mandatory prosecution model. As it was already discussed above, removing the element of discretion from the prosecutorial decision-making could be valid only for an ideal mandatory prosecution model. However, once we have acknowledged that it does not exist63 and that we are rather faced with variances, then we should ask the following two questions: how does discretion operate in a variant mandatory prosecution model, and what underlies the decision-making. If for the reasons of convenience and sufficiency we observe only the wider picture and disregard any idiosyncrasy, we can deduce two instances in which discretion operates in the mandatory prosecution model: (1) cases concerning crime of lesser importance, where mechanisms such as penal orders 61 Damaška, supra n. 6.30, p. 121. 62 Frase, supra n. 6.56, pp. 618 and 621; B.A. Grosman, “Le procureur de la poursuite criminelle: le sur l’exercice du pouvoir de discrétion”, 12(2) Les Cahiers de droit (1971), pp. 251–252. See further: ECtHR (Decision) Irene Wilson v. the United Kingdom, no. 10601/09, 23 October 2012. 63 J.M. Jehle, “The Function of Public Prosecution within the Criminal Justice Systems: Aim, Approach and Outcome of a European Comparative Study”, in J.M. Jehle and M. Wade (eds.), Coping with Overloaded Criminal Justice Systems: The Rise of Prosecutorial Power Across Europe (Heidelberg, Springer 2006), p. 24; Vander Beken and Kilchling, supra n. 6.32, pp. 17 and 150.

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and negotiated settlements come into play; and (2) serious crime where the public interest involved makes concessions to the operative and effective mechanisms of crime control, such as the granting of the status of a crown witness and other forms of substantive deferrals of prosecution related to the suspect’s cooperation with justice.64 In both cases the considerations of public interest determine the prosecutorial choice conducing it to the same outcome of non-prosecution despite the generally unbending legal duty to the contrary. In the first set of cases the public interest involved does not warrant a prosecution due to the insignificancy of the offence at issue or its exclusively private nature, whereas in the second category of cases the public interest for an effective prosecution of serious crime trumps the otherwise strict legal duty to prosecute a particular offence. The above discussion leads to the conclusion that in both models of the charging process – the principle of mandatory prosecution and the principle of expediency – discretion induced by the public interest element appears as the common underlying factor determining the prosecutorial decisionmaking.65 It accordingly follows that in weighing the human rights factor in the exercise of discretion in the decision-making process of criminal prosecution that factor must be viewed against the capacity of the public interest involved to potentially favour a different outcome. Public Interest and the Human Rights Element in the Charging Process The general use of the term public interest in the context of determining expediency of criminal prosecution, even if conceived through the particular procedural implications commonly viewed to be in the public interest,

1.4

64 Kyprianou, supra n. 6.31, pp. 16–20; Langbein, supra n. 6., pp. 450–461; Tak, supra n. 6.31, pp. 31–34; J.P. Tak, “Deals with Criminals: Supergrasses, Crown Witnesses and Pentiti”, 5(1) European Journal of Crime, Criminal Law and Criminal Justice (1997), pp. 2–26. See further in the context of the expedience model: N.C. Bay, “Prosecutorial Discretion in the Post-Booker World”, 37 McGeorge Law Review (2006), pp. 552–554; A.N. Ely, “Prosecutorial Discretion as an Ethical Necessity: The Ashcroft Memorandum’s Curtailment of the Prosecutor’s Duty to ‘Seek Justice’”, 90 Cornell Law Review (2004), p. 242. 65 Nothing can therefore be objected to J.P. Tak who sought to generalise a definition of nonprosecution in a manner somewhat at odds with the principle of mandatory prosecution by conceiving it as “any decision by a prosecutor or a corresponding official according to which he does not bring a prima facie criminal case to court for adjudication, despite the existence of prerequisites and the absence of legal hindrances for prosecution, and despite the availability of evidence regarding the guilt of a specified person” (Tak, supra n. 6.31, p. 54).

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reveals next to nothing about its relationship with the interests of individual members of the public and conceptually provides no insight into what it means to perceive something as being in the interest of the public. Accordingly, before proceeding into the assessment of the weight assigned to the human rights factor against the public interest element in the decision-making of the charging process, we are required to observe a general contemplation of the term public interest. Three theories of public interest distinguishable on the basis of these considerations have been identified in legal doctrine: preponderance or aggregative theories, unitary theories and common interest theories.66 Preponderance or aggregative theories concede that every individual is the best judge of his or her own interests. It follows that public interest has no independent meaning and that it can be at best an aggregation of individual interests. This arguably equates the variables of the interest of a preponderance of individuals and the public interest. On the other hand, unitary theories, which are not so deferent to individual subjective choices, consider public interest to be an overriding interest transcending an apparent conflict between individual and sectional interests. They thus use an objective concept of interest where the relevant consideration is what individuals ideally ought to want or what is good for them rather than what they subjectively consider to be their preference.67 Similarly, common interest theories create a quasi-objective contemplation of public interest by assigning that meaning to interests common to all members of the public. Thereby they create a category of interests distinct from the interests of individuals or groups. Hence, a distinctive exponent of this theory would contend that actions are in people’s interest in so far as they increase their opportunities to get what they desire. At the same time, as the specification of goals remains a subjective question for each individual or group, or for that matter the public, the question how best to achieve those aims is in principle objectively determined. These theories respond to the central criticism that they make the public interest redundant by arguing that there is the “net interest” in that people can have different interests in respect of the same situation if they simultaneously occupy different roles or capacities in relation to the matter. This does not, however, exclude the contemplation of the common interest as a collective or universal interest which belongs to no-one special. Accordingly, public interest cannot be the sole criterion for determining legitimate public action, although it appears as an analytic category 66 McHarg, supra n. 3.79, p. 674. 67 Ibid., pp. 674–675.

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forming one element in any decision-making which must not always prevail in the circumstances.68 Public interest can have positive and negative applications. Negative applications relate to actions preventing someone from doing something that could have an adverse effect on an indefinite group of people (such as potential victims of crime). On the other hand, positive applications are instances in which a facility is provided for an indefinite group of people.69 This may imply the conferring of particular rights on individuals, although strictly theoretically speaking the existence of fundamental rights should not depend merely on the recognition of such facility from the perspective of the public interest.70 The public interest argument in the exercise of actions of public administration should, as an author has suggested, observe the elements of democracy, mutuality, sustainability, and legacy, with the element of democracy as the central driving force behind the overall evaluation.71 Similarly, in the practical reasoning of human rights law it operates in general through one of the following categories: firstly, as an argument for derogation of particular rights, save for those of absolute nature; secondly, as a qualifying element of certain rights associated with the question of proportionality; and thirdly, as a justification for a specific restriction on a right. In any case, however, the public interest argument is attached to the considerations of the rule of law and democracy.72 An argument of convergence between the administration of a public office and human rights requirements is the necessity of upholding the rule of law which generally implies a multi-faceted ideal construed on the basis of a duty for those in positions of authority to exercise their power within a constraining framework of norms rather than on their own preferences, ideology or individual sense of right and wrong. The rule of law can also be understood as a guarantee of legal certainty, predictability, and settlement, the determinacy of the norms, and the reliable character of their administration by the state. In other words, it can have substantive and procedural implications in the sense that the rule of law is not only about rules but also about their impartial administration. This implies, in particular, that the administration of public affairs 68 69 70 71 72

Ibid., pp. 676–678. B. Barry, Political Argument (London, Routledge & Kegan Paul 1965), p. 208. J. Gerards and H. Senden, “The structure of fundamental rights and the European Court of Human Rights”, 7(4) International Journal of Constitutional Law (2009), p. 635. C.W. Lewis, “In Pursuit of the Public Interest”, Public Administration Review (2006), pp. 694–701. See further: S. Greer, Public Interest and Human Rights in the European Convention on H ­ uman Rights (Strasbourg, Council of Europe H(95)1 1995), pp. 1–4.

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must provide for opportunities of active engagement of an individual in the administration of law and the public institutions must sponsor and facilitate reasoned arguments in human affairs.73 1.4.1 Weighing of Human Rights and Public Interest The structural assignment of the human rights factor in the exercise of the function of criminal prosecution implies its positioning in the overall structure of the charging process and determining its relationship with other elements of the structure. The former aspect could be viewed in the context of the requirement of applicability, whereas the latter could be conceptualised with regard to the particular aspects of effectiveness of the procedural obligation in human rights law. But before we proceed to develop this proposition in the context of the present discussion, a conceptual clarification is in order. It could be arguably asserted that this structural assignment merely means identifying a particular element of the overriding public interest inextricably implied in the function of criminal prosecution. Thus, for instance, the expected costs and expenses of the proceedings or the requirements of adequate resource management could be simply viewed as the particular aspects of the public interest, rather than as the specific individual elements in the overall structure of the charging process. That would consequently imply, in case of a conflict in reaching intended goals, the necessity to balance or confront two or more public interests.74 On the basis of the same premises one could assert that upholding individual rights of the defendants or victims in criminal proceedings means also nothing more than upholding public interest. It has already been conceded in this study that we should accept that the victim’s interests are part of the public interest and that there is at best a blurry line of distinction between the two conceptions.75 This can be observed, for instance, when seen historically, in the fact that private individuals at common law were able to bring prosecution on their own behalf and on behalf of the public interest (qui tam actions) or sometimes only in the public interest.76 73

J. Waldron, The Concept and the Rule of Law (New York, Public Law & Legal Theory Research Paper Series 2008), pp. 5–9. 74 A. Ashworth, Human Rights, Serious Crime and Criminal Procedure (London, Sweet & Maxwell 2002), p. 70. 75 See further: Ashworth, supra n. 1.13, p. 603. 76 Damaška, supra n. 2.35, p. 40; J.H. Langbein, “The Criminal Trial Before the Lawyers”, 45(2) The University of Chicago Law Review (1978), p. 282.

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Similarly, we have already noticed that in contemporary international ­ uman rights law exercising the right-claim to effective application of crimh inal-law mechanisms implies a requirement of action for the benefit of the right-holder and the public interest. This can be observed in the following passage of an IACtHR judgment that well summarises this discussion: All the States party to the American Convention have the duty to investigate human rights violations and to punish the perpetrators and accessories after the fact in said violations. And any person who considers himself or herself to be a victim of such violations has the right to resort to the system of justice to attain compliance with this duty by the State, for his or her benefit and that of society as a whole.77 This, however, should not be understood as a concession to utilitarian theories which admit that certain interests, referred to as rights, should be protected only if doing so produces maximum amount of general preference satisfaction. According to these theories, there can be no conflict between rights and public interest since, essentially, the latter is always preferred.78 Conversely, the above discussion would equally allow us to turn the argument around and to say that the public interest element should be measured through the victim’s rightclaim to effective application of criminal-law mechanisms in the protection of his or her human rights. But both such uncompromised approaches ignore the fact that the relationship between rights and public interest is essentially multidimensional.79 Bearing in mind this multidimensionalism it should be noted that in the context of the present discussion we are in the territory of the assessment of influence of a rights-based argument on a specific structure of the administration of justice. In other words, once we have identified the human rights element in the exercise of the function of criminal prosecution, we have asserted a fundamental rights argument which, as Andrew Ashworth explains, implies that it cannot be simply taken away by showing that a majority would perhaps be better off it.80 Moreover, we have seen that this element operates as an actuality in the practical reasoning of international human rights law as a derived instance of a higher fundamental right. It thus transcends a mere aspiration 77 78

IACtHR (Judgment) Caracazo v. Venezuela, 29 August 2002, para. 115. G. Letsas, “Two Concepts of the Margin of Appreciation”, 26(4) Oxford Journal of Legal Studies (2006), p. 715. 79 See further: McHarg, supra n. 3.79, p. 672. 80 Ashworth, supra n. 6.74, pp. 70–71.

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and entails that it should be assigned some kind of weight with regard to the determination of political and legal policies.81 Consequently, as a right-based argument it must be taken seriously which, as Dworkin explains, means not only as a cut off for supposed reasons of the general good.82 Accordingly, we should reject as flawed and inutile the possibility of limiting the present discussion to ascertaining the human rights element in the structure of the function of criminal prosecution as a mere specific aspect of the public interest and should rather attempt to identify its weight by observing its specific position and function in the overall structure of the charging process. This in particular means assessing the position and relationship of the human rights element with regard to the public interest element in prosecution. Let us therefore, although without any ambition to enter into debates over the controversial matters, open this discussion by an excursus on some relevant theories on the general balancing of human rights and public interest.83 In political theory in general the contemplation of a public interest argument (such as the necessity of expedient prosecution) may imply the promotion of legislation and practices capable of trampling on the interests that are commonly understood as human rights. Accordingly, while it may be recognised and appreciated that human rights should be protected, it may be decisively advocated that it is in the public interest to allow exceptions. The same argument observed from a slightly different perspective would seek to contend that, whereas respect for human rights should usually prevail, the balance may incline towards the public interest in the given circumstances.84 The balancing of rights and public interest may also depend on one’s vision of the strength which rights confer upon individuals. Specifically, in a stronger version – observed from the perspective of Dworkin’s “rights as trumps” theory –85 81

Ibid., pp. 70–74. See further: S. Guinchard, “La prééminence du droit et la place de la justice”, ii Annuaire international des droits de l’homme (2007), pp. 103–112. 82 Dworkin, supra n. 5.5, p. 204. 83 Note that, given that the matter of examination is the procedural obligation of criminal investigation and prosecution as a reaction to the occurrence of a human rights offence, this discussion will not be concerned with cases of interferences with rights. See further for the questions of balancing of public interests and rights in the context of interferences: E. Brems and L. Lavrysen, “‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights”, Human Rights Law Review (2015), pp. 1–30. 84 Ashworth, supra n. 6.74, pp. 69–70. 85 R. Dworkin, “Rights as Trumps”, in A. Kavanagh and J. Oberdierk (eds.), Arguing About Law (Abingdon, Routledge 2009), pp. 335–344.

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rights would have a lexical priority over public interests in the vast majority of circumstances, whereas in a weaker version – where rights are merely an expression of a particularly important interest – rights could be outweighed by other important aspects of public or collective good.86 This discussion could be observed by contemplating the differences between immunities and reason-blocking conceptions of rights. In the former case, where the question is the protection of interests of an individual, a restriction would be allowed whenever a particular contemplation of a right does not serve, or at least does not serve significantly, an important individual interest. On the other hand, the reason-blocking conception of rights places emphasis on the question of permissibility of the restriction of rights. From this perspective, individuals have a right not to be deprived of liberty or an opportunity on an inegalitarian basis, which could suggest that their particular interests are inferior to the requirement of equality. Rights, in this sense, bear particular relevance in cases where hostile external preferences of majority could deny to an individual his or her equal status as an autonomous person. Hence, while it is irrelevant on how well some individual interests are served, the central consideration is the duty of a political community to treat its members as equals.87 The question of balance between rights and the public interest may be contemplated as a weighing between social costs of the protection assigned to a right. Dworkin advances three grounds for which social costs in the recognition of a right would not be necessary. Firstly, it could be shown that the values protected by a right in reality are not at stake in a marginal case, or that they are at stake in some attenuated sense. Secondly, it could be the case that when the right is defined to include the marginal case, then some competing right would be abridged. And thirdly, it might be shown that if the right were so defined, then the cost to society would be of a degree far beyond the cost of the original right; a degree great enough to justify whatever interference with the protection assigned to the right.88 Ashworth further completes and nuances Dworkin’s theory by observing some specific aspects of rights under the echr. His theory is based on the premise that there should be a minimum kit for a basic right. That means that a basic right should be strong enough to resist any simple argument that public safety would be enhanced if the right were curtailed. However, that assessment

86 McHarg, supra n. 3.79, pp. 673–674. 87 Letsas, supra n. 6.78, pp. 716–720. 88 Dworkin, supra n. 5.5, p. 200.

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should be framed within the three levels of strength which Ashworth assigns to rights under the echr.89 In particular, he distinguishes three levels of strength of rights under the echr. The first concerns non-derogable rights or those rights which must be upheld no matter how dire the particular circumstances. One such non-­ controversial aspect of rights is the prohibition of torture under Article 3.90 In addition, in so far as relevant for this study, there are the right to life (Article 2) and the prohibition of slavery and forced labour (Article 4). Ashworth, however, explains that these rights are absolute only in the sense that they are not intended to give way to public interest considerations, but their meaning and reach remain open for interpretation and in that sense they are not absolute. Indeed, we should be ready to accept that any right is subjected to express definitional restrictions limiting either its content, the circumstances in which it applies or the scope of its beneficiaries.91 The second category of rights represents qualified or prima facie rights. These are declared rights but at the same time, as Ashworth made clear, they may be interfered with on certain grounds to the minimum extent possible. They include the right to respect for private and family life (­Article 8), the right to freedom of thought and religion (Article 9), the right to freedom of expression (Article 10), the right to freedom of assembly and association (Article 11) and the right to protection of property (Article 1 of Protocol No. 1). In between non-derogable rights and qualified rights Ashworth positions an intermediate category which he labels strong rights. These are rights which are less fundamental than non-derogable rights but at the same time stronger than qualified rights in that any argument of interference must be more powerful than “necessary in a democratic society,” which would be sufficient for a qualified right. He considers the right to liberty and security of person (Article 5) and the right to a fair trial (Article 6) to be such rights.92 The conceptual impossibility to devise a single methodology or theory for balancing of human rights and public interest was advanced by Aileen McHarg who considers that there are two balancing models between which the decision in a concrete case will have to oscillate depending on the nature of a particular case in question.93 His first balancing model is based on the comparison 89 Ashworth, supra n. 6.74, pp. 76–77. 90 Gerards and Senden, supra n. 6.70, p. 621. 91 McHarg, supra n. 3.79, p. 671. 92 Ashworth, supra n. 6.74, pp. 75–76. 93 McHarg, supra n. 3.79, p. 683.

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of premises of the common interest theory of public interest and the interest model of rights. This implies that, prima facie, whenever a conflict arises, the stronger argument for a right to public interest should prevail. In other words, the relevant question is whether it is necessary to encroach on a right to a particular degree in order to achieve the desired result. If not then there is a breach of right. The second model is based on the unitary version of the public interest and the strong conception of rights. In a rather abstract mode of this model the decision-maker must define the scope of rights and the scope of collective goals respectively in individual cases, which would lead to the inducement of a set of clear rules and exceptions. A more practical mode of this model is to consider the purposes which a right is intended to serve and thereby the nature of the protection it ought to have. When an encroachment strikes at the heart of a right, robbing it of any effect, then the right must prevail irrespective of a possible adverse effect on a desirable collective goal. However, beyond this, the placement of collective interests above individual rights may legitimately be advanced.94 Without assigning any a priori preference to a particular theory observed above, we are now in a position to advance with the discussion on the particular implications of the position and relationship of the human rights element with regard to the public interest element in the overall structure of the charging process. This conceptually implies, as already observed above, the necessity to assign weight to the human rights element in the exercise of discretion in the decision-making process of criminal prosecution. 1.4.2

Weighing the Human Rights Element in Prosecutorial Decision-making The preference for a structural approach to the question at hand at a preliminary stage of consideration mandates for a clear conceptual distinction between the questions of applicability and effectiveness of the human rights element in the arrangement of prosecutorial decision-making. As it was already contemplated above, the question of applicability relates to the enquiry about adequate positioning of the human rights element in the structure of the charging process whereas the element of effectiveness induces a requirement for the determination of its relationship with other elements within the same structure. For convenience, let us denote “other elements of the structure” simply as the public interest.

94

Ibid., pp. 678–683.

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With regard to the question of applicability of the human rights element in the structure of prosecutorial decision-making the decision-maker95 has no choice in deciding whether to assign the human rights element to the structure or not. Whenever the human right at question mandates for a substantive protection by means of criminal law the decision-maker will be obliged to consider the human rights element in the decision-making. We have already seen that the belt of restrictions to a discretionary decision-­making in such a case is tightly constrained by human rights law in the same way, we could say, as it is constrained by criminal law with regard to the necessity of upholding a compelling public interest by means of criminal law. In other words, a decision-making official has no discretion in deciding whether the requisite substantive criminal-law protection of a human right is to be enforced by applying the relevant criminal-law mechanisms.96 He or she could, within the arrangements of the applicable criminal procedure, examine the modalities of such enforcement (effectiveness), but this is a different matter than the principal question of enforcement of substantive-law protection. Comparably, for instance, a decision-maker will have no discretion in deciding whether criminalisation of a certain conduct by the relevant criminal code should be enforced through the mechanisms of criminal law. He or she could examine whether diversion from prosecution or other modalities of enforcement can be applied in the circumstances, but this does not mean that the decision-maker is vested with discretion to decide whether the proscription by Criminal Code merits the criminal law protection. Consequently, when making any decision with regard to such proscription (for instance, diversion) the decision-maker will be obliged to incorporate the criminal law prohibition of the conduct at issue in his or her decision-making. The assignment of the human rights element within the structure of prosecutorial decision-making, determined by the belt of relevant legal restrictions, could be observed through the following graphic arrangement (Figure 6.1).

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Note that at this point it is irrelevant whether the decision-maker is a first-instance prosecuting authority or the reviewing authority within the same hierarchy or, as the case might be, a court reviewing the prosecutorial decision. We should not exclude the possibility that there could be some extreme marginal idiosyncratic cases where discretion in this context could exist, but for the purpose of the present discussion we should not deal with such a possibility as it is irrelevant for inducing the intended logic to the prosecutorial decision-making process.

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DECISION-MAKING OFFICIAL

HUMAN RIGHTS

PUBLIC INTEREST

DECISION TO PROSECUTE

CRIMINAL LAW

Figure 6.1 Human rights element in the prosecutorial decision-making

When the human rights element and the public interest share the same vision as to the purpose of application of the relevant criminal-law mechanisms, consequently leading to a convergent outcome, no issue arises with regard to the exact specific aspects of their relationship. It follows that the question of effectiveness, although preserving its nature of a conducing aspect in the decisionmaking, becomes obsolete in practical reasoning. In reality, the vast majority of cases will fall into this category. When, however, the preferences between the human rights element and the public interest diverge as to the purpose of criminal prosecution in a given case, then the question of effectiveness of the human rights element comes into play as, to borrow the words of Xenos, a democratic limit determining the positive action of criminal prosecution. This may relate to a range of considerations some of which may be of a purely procedural nature (easy cases) whereas the others could be conducive to the very essence of the decisionmaking in the charging process (hard cases). The first category of cases includes questions such as victim participation or public nature and the desired level of independence of the proceedings. The relevant consideration in deciding whether a competing public interest would be capable of trampling on the human rights element is whether the procedural aspect in question sufficiently serves the interests of the efficient and necessary application of criminal-law mechanisms in human rights protection. When the relevancy of the procedural aspect in question is in reality of a marginal nature, in the sense that it is not capable of undermining the human rights protection by the application of criminal-law mechanisms, then the range of choices in the decision-making will move on the scale determined by the public interest considerations. In other words, only the relevantly important flaws in the application of criminal-law mechanisms, as opposed to

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allegations of error or isolated omissions,97 would be capable of leading to a violation of the state’s obligations under human rights law. In this case the human rights element functions as an ultimate restrictive edge on the scale determined by the public interest considerations. The second category of cases, denoted as hard cases, concerns instances in which the application of criminal-law mechanisms in human rights protection, although recognised and accepted as conducive in the decision-making of the charging process (as there is no discretion in that respect), is diverted in favour of some important public interest reason (naturally, other than the lack of evidence). In these cases, the premise conducive for the assessment should be the fact that once we have attributed human rights protection to an important individual interest, and once we have agreed that it should be protected by criminal law, then we should concede that criminal investigation and prosecution become mechanisms by which the protection is enforced and consequently the infringement of the right vindicated. If the right at issue belongs to Ashworth’s first category of rights under the echr, then the public interest considerations cannot serve as an element impeding prosecution. In other words, the social costs of such a right are of a degree far beyond any cost to the society as a whole.98 With regard to Ashworth’s other two categories of rights under the echr (qualified and strong rights), and bearing in mind that we remain compelled by the same considerations as to the nature and purpose of the criminal-law protection of human rights, the relevant considerations should not conceptually differ as we are still within the realm of the required democratic limit. Only in this case the content and circumstances in which it applies are not as rigid as in the case of the first category of rights. In other words, there might be instances where the cost to society would be of a degree far beyond the cost of the protection of the right by putting in place the relevant criminal-law mechanisms. Accordingly, diverting the application of criminal-law mechanisms in favour of the public interest would be acceptable but only in so far as such encroachment on the desired protection would not impair the very essence of the right robbing it of any practical effect in the applicable legal discourse. The limits would in particular be determined by the necessity to achieve equality between the members of the society through remedying the disturbance of 97

98

ECtHR (Judgment) Söderman v. Sweden [gc], no. 5786/08, 12 November 2013, para. 90; ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 242. ECtHR (Judgment) Selmouni v. France [gc], no. 25803/94, 28 July 1999, para. 95.

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social equilibrium by the occurrence of a criminal offence and treating the injured party as an autonomous person, holder of human rights and beneficiary of the corresponding state’s duties. Arguably, in the practical reasoning this would imply the duty of the decision-making official to provide relevant and sufficient reasons for his or her decision and the possibility for the injured party to challenge that decision.99 It would also require effective existence in practice of alternative avenues for vindicating the infringement of a right. Before summing-up the above discussion one clarification is in order with regard to a possible objection that the mandatory prosecution in cases of Ashworth’s first category of the echr rights is by its nature counter-majoritarian and thus anti-democratic. In particular, one might contend that by protecting the interests of individuals we may ignore the overwhelming majority choice, which could be hampered by giving precedence to upholding individual rights against some important public-interest agenda.100 For the answer to such an objection let us again resort to what Ashworth conceptualised as three general answers to anyone who might submit that human rights undermine the democratic processes.101 In doing so we should start from the premise that the human rights requirements at issue are provisions sufficiently domesticated in the national constitutional discourse and practice for the reasons already addressed several times in this study which will therefore not be repeated here. Accordingly, we should concede, firstly, that there can be nothing undemocratic about constitutional entrenchment of rights as it is by its very nature the result of a democratic process. Secondly, the recognition of human rights enhances democracy by increasing its legitimacy. And thirdly, it should not be controversial to accept a well-established proposition in legal theory that states are under an obligation to ensure that fundamental rights are secured by, in particular, resorting to various positive actions. 1.5 Conclusion Prosecutorial discretion is sometimes viewed in legal theory as a regrettable concession to reality.102 What the above discussion sought to demonstrate is 99 Ashworth, supra n. 1.13, p. 605. 100 For instance, by prosecuting a suspect of a human rights offence who could be a crown witness in an organised crime case. 101 Ashworth has in fact conceptualised three general and one specific answer to this debate, but since the latter is pertinent to the specific aspects of the domestic system in the United Kingdom it will not be addressed here. See further: Ashworth, supra n. 6.74, pp. 70–74. 102 S. Bibas, “The Need for Prosecutorial Discretion”, 19(2) Temple Political & Civil Rights Law Review (2010), pp. 369–375.

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far from any such claim as it showed that, from the perspective of the necessity to conceptualise the human rights element in the process of prosecutorial decision-making, there is no conceptual divergence between the two charging models (expediency and legality) given that both, probably just as any other human action, inevitably imply discretion in the decision-making process which can be adequately operationalised in practical reasoning. Traditionally, the element conducive to the exercise of discretion in prosecutorial decision-making has involved the public interest reason. We have seen, however, that such contemplation of the relevant legal relations no longer suffices as contemporary legal debate has introduced the human rights element in the belt of restrictions determining the range of possibilities for the decision whether to prosecute or not. The position of the human rights element in the structure of decision-­ making in the charging process is a given legal reality to which any form of subterfuge is generally a priori impermissible. It is an intrinsic reason conducive to the prosecutorial decision structurally positioned at the same level as the public interest argument. Functionally, however, it may operate under different levels of strength depending on the stringency of reasons underlying the protection of the right at issue. The range of possibilities thus moves from the requirement of mandatory prosecution, in the case of absolute rights, to the acceptable diversion from prosecution induced by the public interest considerations in the case of qualified and strong rights. A possible confusion should, however, be avoided. Assigning the requirement of mandatory prosecution to the instances of criminal infringement of an absolute right does not imply the removal of a range of possibilities in the particular aspects of decision-making, which adequately incorporated the relevant human rights considerations. For instance, in the case of evidential insufficiency criminal prosecution will obviously not be mandated. This is understandable from the perspective of a variety of self-explanatory reasons,103 the most important being the necessity of the protection of public interest and 103 If it were otherwise we would be condoning absurd situations tantamount to Piso’s justice. The reader will recall Piso, a Roman governor who condemned a soldier to death for alleged murder of his mysteriously disappeared companion. Just when the centurion was about to execute the death penalty, the missing solider appeared. The centurion therefore discontinued the enforcement of the sentence and referred the case back to Piso. Thereupon, however, Piso condemned all three to death – the convicted soldier because his sentence must be enforced; the centurion for not executing the sentence; and the missing soldier for bringing about the situation in which his companion was condemned to death (Seneca, “On Anger”, in J.M. Cooper and J.F. Procopé (eds.), Moral and Political Essays (Cambridge, Cambridge University Press 1995), pp. 36–37).

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the rights of suspects from frivolous prosecutions104 and scapegoating.105 Similarly, the appropriate sanction for a particular offence cannot be determined in general and thus a range of possibilities in sanctioning must also inevitably exist. The above considerations can be observed in the ECtHR case-law in Armani Da Silva v. the United Kingdom. In that case the ECtHR was called upon to examine whether the exercise of prosecutorial discretion not to bring charges against the State officials involved in a mistaken killing of the applicant’s relative, due to a lack of evidence securing the prospect of conviction in accordance with the relevant domestic law, ran counter to the requirements of Article 2 echr. It is important to note that the exercise of the prosecutorial discretion in the case at issue was made against the explicitly incorporated human rights considerations of the procedural obligation under Article 2 in the course of the domestic investigation and the decision-making, and a decision not to prosecute was adopted only after it was established that “the investigation has complied with Article 2 and the procedural requirements that flow from it.”106 Moreover, a subsequent review of the decision not to prosecute heavily revolved around the question whether the exercise of the prosecutorial discretion had been compliant with the procedural obligation under Article 2 echr.107 It could be therefore said that the human rights requirements significantly determined the domestic procedural discourses.108 In these circumstances, after having satisfied itself that the relevant test concerning the use of lethal force in the domestic system was echr compliant, there was no reason for the ECtHR to call into question the domestic authorities’ decision not to bring prosecution due to a lack of evidence of a criminal offence.109 In any case, however, the ranges of possibilities in the prosecutorial decision-­ making will be legitimately permissible in so far as the human rights requirements are complied with at every stage of decision-making, irrespective of whether a particular legal system adheres to the principle of mandatory prosecution or the principle of expediency. In this connection, from the perspective 104 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 266. 105 See further: supra 2.3.2. 106 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, paras. 48 and 80. 107 Ibid., paras. 92–98. 108 See further: ibid., para. 169. 109 Ibid., paras. 283–288.

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of international human rights law, states must enjoy a certain margin of appreciation when regulating the prosecutorial decision-making processes, and this margin will not be encroached in so far as a balance of the relevant competing interests has been secured.110 2

Protection of the Rights of the Accused

2.1 Introduction One of the implicit aspects of the public interest element in contemporary criminal procedure is the full recognition and protection of the rights of the accused. Indeed, historically, the introduction of the legal process in the overall process of social reaction to a crime meant a departure from the state of anarchy and tyranny by providing certain and foreseeable laws and a forum for impartial resolution of the criminal matter with the full respect for general social interests, including the position of those suspected of an offence.111 The contemporary legal standards led to the conclusion that an accused has the “right to judicial proceedings” which essentially means the “right not to be subjected to punishment except after proceedings.”112 In his comprehensive and elaborated study on human rights in the context of criminal justice, Cherif Bassiouni identified eleven different rights, or cluster of rights, guaranteed in various international instruments and national constitutions, protecting an individual suspected of the commission of an offence from various forms of abuse, manipulations or subterfuge of his individual interests and liberties. Bassiouni finds each of these rights “to be basic to fairness in the criminal process” and their denial a threat to the very concept of democracy.113 These rights, which he sees as “‘general principles of law’ in international law,” include: (1) the right to life, liberty, and security of the person; (2) the right to recognition before the law and equal protection of the law; (3) the right to be free from arbitrary arrest and detention; (4) the right to freedom from torture and cruel, inhuman, and degrading treatment or punishment; (5) the right to be presumed innocent; (6) the right to a fair trial – consisting of: (a) the right 110 Ibid., paras. 267–269. 111 Gaston, Levasseur and Bouloc, supra n. 1.2, p. 16. 112 M. Chiavario, “Private parties: the rights of the defendant and the victim”, in M. DelmasMarty and J.R. Spencer (eds.), European Criminal Procedures (Cambridge, Cambridge University Press 2002), p. 546. 113 Bassiouni, supra n. 1.4, p. 253.

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to the inadmissibility of certain evidence, (b) the right to an impartial and independent tribunal, (c) the right to have procedures established by law, (d) the right to a speedy trial, (e) the right to a public hearing, (f) the right to be informed of the charges, (g) the right to equality of arms, (h) the right to assistance of counsel, (i) the right to compulsory process, (j) the right to be tried in one’s own presence; (7) the right to assistance of counsel, which in particular includes: (a) the right to counsel of one’s choice, (b) the right to appointment of counsel in case of indigence, (c) the right to self-representation, (d) the right to assistance of an interpreter, (e) the right to the presence of counsel during all stages of the proceedings, (8) the right to a speedy trial, (9) the right to appeal, (10) the right to be protected from double jeopardy, (11) the right to be protected from ex post facto laws.114 Some other authors have approach the matter along the lines advanced by Bassiouni. For instance, Salvatore Zappalà finds that all international human rights instruments enshrine the principle of primacy of the rights of the accused, which is, according to him, to a large extent customary international law that must be implemented at three levels: firstly, through the normative instruments governing the functioning of the competent courts; secondly, through a judicial application in a given case; and thirdly, through the mechanisms of redress for the possible violations.115 Consequently, Zappalà considers that an answer to any argument of a conflict with the rights of defendants, inevitably created by victim participation in criminal proceedings, should be sought in solutions providing for the respect and primacy of the rights of the defendants over any potentially conflicting interests.116 On the other hand, some authors have come to a completely different conclusion finding that the contemporary trends in criminal justice favour the position of the victim over the due process rights of defendants.117 In reaching his conclusions Zappalà relies, amongst other things, on the findings of Mario Chiavario who, drawing from the echr, systematised two clusters of rights in criminal proceedings: the right to judicial proceedings and the rights in the course of the proceedings. Whereas, according to him, the former are designated to the benefit of the victim and the accused, the latter function to the exclusive benefit of the accused, although they inform the relevant

114 Ibid., pp. 254–293. 115 S. Zappalà, “The Rights of Victims v. the Rights of the Accused”, 8 Journal of International Criminal Justice (2010), p. 140. 116 Ibid., p. 139. 117 Bárd, supra n. 1.53, pp. 196–199.

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rights of victims.118 Chiavario, however, also recognises, notably in a rather timid manner, the relevancy of the procedural obligation for understanding the position of private parties (in particular the victim) in the criminal proceedings. He calls these implications the “right to a criminal trial in certain other specific situations” but fails to develop his arguments any further.119 More importantly for the present discussion, it should be noted that Chiavario’s methodological premise is based on the fact that criminal proceedings conform the position of two private parties (the victim and the accused) who normally find themselves on opposing sides. According to Chiavario this creates a methodological intricacy given that the rights of the private parties cannot be considered as a real and indisputable cohesive factor and thus they mandate for an analysis rather than synthesis of the relevant relations. Nevertheless, Chiavario concludes that procedural implications in the contemporary structure of the criminal process mandate for a search of symmetry and balance between the rights of the victim and the accused.120 As it was already noted and copiously endorsed in the introductory part to this study, Fletcher also devised the contemporary model of criminal procedure as a process of interplay of interests within three interrelated positions of the same structure; that of the accused, the victim and the state. He concludes his discussion by observing the following: Now if these interests are in play in every trial, we could not function without a presumptive order of priorities. We need to know whether in a case of conflict we should generally favour the interests of the accused, of the victims, or of the prosecution. As reflected in the constitutional tradition of the West, the priorities are clear. First in order of preference is the accused, typically protected by an array of explicit constitutional provisions. Secondly are the victims, who are acquiring more and more rights but who are not yet protected – anywhere to my knowledge – at a constitutional level. Finally there is the state, the prosecution, which can claim few rights of its own and must serve primarily to safeguard the rights of the accused and the victims. The starting priorities, then, are: accused, victims, state. In every case, of course, these general priorities must be adjusted to the facts and the particular interests of the parties.121 118 Chiavario, supra n. 6.112, pp. 541–542. 119 Ibid., p. 545. 120 Ibid., pp. 541 and 588. 121 Fletcher, supra n. 1.1, p. 581.

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Let us now challenge some of these contentions by asking the following question: what if the conflicting interests referred to by Zappalà are protected as rights, or, more concretely, as the right to a fair trial guaranteed to an accused and a right-claim to effective application of criminal-law mechanisms to the benefit of the victim? Would it in such a case follow, as despondently suggested by Chiavario, that the contemporary criminal process is a structure concentrated around a permanent opposition between two conflicting sides, without the existence of any real cohesive factor capable of conforming their positions? Admittedly, one could hardly be reasonably refuted if he or she suggested that the victim would be much better off without the existence of the rights of the accused, and that the accused would prefer not to have the victim’s interests protected as rights as it inevitably interferes with his or her rights.122 Let us therefore assume the existence of tensions in the conceptual arrangement of relevant procedural implications of contemporary criminal process, to which, by logical implication of the necessity for the system to operate, there can be two solutions: (1) one of the competing rights is principally overridden in favour of the other, as submitted by Fletcher;123 or (2) a compromise in their optimisation is reached.124 Neither of the solutions, however, is simple or self-explanatory. We can observe this contention by returning to the argument pursued by Zappalà according to which the resolution of the conflict between rights in criminal proceedings should be sought in solutions providing for the respect and primacy of the rights of the defendants over any potentially conflicting interests. This assertion could be tested against the example of ne bis in idem (or double jeopardy), which is argumentatively defended by Bassiouni as a right ­belonging to the “general principles of law in international law” and as such conducive to the very concept of democracy.125 This right is also present in Chiavario’s systematisation as one of the procedural rights with virtually “absolute protection,”126 and Fletcher positioned it in the centre of his arrangement 122 Van Kempen, supra n. 1.54, p. 19. 123 Note that Fletcher further develops his thesis of primacy of the rights of the accused by observing relations within the criminal process in international criminal law or, more precisely, before the icc, whereas the further discussion in this study will be oriented towards the arrangement of matters in the context of national criminal procedures. 124 X. Xu and G. Wilson, “On Conflict of Human Rights”, 5(1) Pierce Law Review (2006), p. 40. 125 Bassiouni, supra n. 1.4, pp. 288–289, 292–293. 126 Chiavario, supra n. 6.112, p. 573. Note that the designation of ne bis in idem as an absolute right appears to be based on the conceptual confusion between “absolute” and “non-derogable” rights (see further: S. Greer, “Is the Prohibition against Torture, Cruel,

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of relations within the criminal procedure.127 Specifically, we can proceed by confronting the ne bis in idem right with the right of the victim to effective application of criminal-law mechanisms, implying the prosecution and conviction of the perpetrator of a human rights offence. The matter was addressed in several cases adjudicated by the IACtHR. In its seminal case of Almonacid-Arellano et al. v. Chile the IACtHR held that the ne bis in idem principle is not absolute in that it cannot be applied if the previous prosecution was intended to shield the accused from criminal responsibility, if the competent courts lacked the requisite independence and impartiality, and if there was no real intent to bring those responsible to justice (fraudulent res judicata). In addition, the IACtHR made the following general observation: On the other hand, the Court believes that if there appear new facts or evidence that make it possible to ascertain the identity of those responsible for human rights violations or for crimes against humanity, investigations can be reopened, even if the case ended in an acquittal with the authority of a final judgment, since the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle.128 Similarly, in the case of Marguš v. Croatia the ECtHR found that the procedural obligation under Articles 2 and 3 echr, concerning grave breaches of fundamental human rights, trumped the opportunity for the defendant to invoke the protection of the ne bis in idem right under Article 4 of Protocol No. 7, preventing his new prosecution after an earlier discontinuation of the criminal proceedings against him by the application of amnesty.129 The ECtHR also stressed the following: The Court has already held that, where a State agent has been charged with crimes involving torture or ill-treatment, it is of the utmost importance that criminal proceedings and sentencing are not time-barred and that the granting of an amnesty or pardon should not be permissible… Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law?”, 15 Human Rights Law Review (2015), p. 113). 127 Fletcher, supra n. 1.1, p. 580. 128 IACtHR (Judgment) Almonacid-Arellano et al. v. Chile, 26 September 2006, para. 154 (emphasis added). See further IACtHR (Judgment) La Cantuta v. Peru, 29 November 2006, paras. 151–154. 129 ECtHR (Judgment) Marguš v. Croatia [gc], no. 4455/10, 27 May 2014, paras. 126 and 139.

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It has considered in particular that the national authorities should not give the impression that they are willing to allow such treatment to go unpunished… Accordingly, for instance, in the case of Cestaro v. Italy, the ECtHR identified a structural problem in the Italian legislation allowing for the possibility that human rights offences attaining the level of severity under Article 3 echr could become time-barred or be subjected to a remission of sentences. It thus indicated to the Italian authorities, under Article 46 echr, the need to take the relevant measures to resolve the impugned situation.130 This approach in the ECtHR case-law has also its reflection in the national constitutional discourse. For instance, in the case no. U-III-791/1997, the Croatian Constitutional Court, upon a constitutional complaint by the victims, quashed the decision on the discontinuation of criminal proceedings for murder by the application of amnesty, and remitted the case ordering that the matter be effectively prosecuted before the lower courts.131 Without drawing at this point any final conclusions from the observed examples, it conclusively follows that we are required to make a very prudent analytical stance before advancing any firm position as to the nature and consequences of the tensions arising from the alignment of rights favouring specific interests of their agents into a single structure of criminal procedure. In other words, conforming the right-claim to effective application of criminallaw mechanisms (denoted as h(φ)) and the rights of the accused (here conceived as an aspect of the public-based requirements implied in the charging process – denoted as p(φ)) – to a single structure of effective application of criminal-law mechanisms (denoted as φ), we are first required to conceive the methodological premises for such an alignment. These are essentially twofold: (1) there is no genuine conflict between the right-claim to effective application of criminal-law mechanisms and the rights of the accused; and (2) consequently, the solution to conforming them into a single structure lies in their optimisation. 2.2 A Spurious Conflict It could be arguably asserted that from the perspective of human rights law the contemporary criminal procedure is a coherent scheme in which the rights of the individuals implicated in a criminal matter (the victim and the accused)

130 ECtHR (Judgment) Cestaro v. Italy, no. 6884/11, 7 April 2015, paras. 242–246. 131 U-III-791/1997, 14 March 2001.

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are arranged with the aim of reaching a commonly desired and acceptable outcome or resolution of the matter. The rights in this context are not all interests favouring an individual’s basic liberties132 or good but only the ones that are needed for the exercise, on the one hand, of the victim’s power to bring those responsible for a criminal infringement of his or her human rights to justice;133 and, on the other hand, the immunity of the accused to resist any such demand which could deny his or her basic liberties or good, protected at this particular instance as the due process rights.134 Conceptually speaking, when understood in this sense, the criminal procedure is a form of restriction on any kind of unnecessary maximisation of the number of other deliberate affirmations of good. In other words, when putting the rights of the individuals implicated in a criminal matter into a perspective framed by the scheme of criminal procedure (naturally comprising all stages of the process from the moment of the first action triggered by the commission of an offence until the complete resolution of the matter), we are discussing confrontation of rights that exists if and only if such arrangement is made. Otherwise, we would either have no confrontation or tension between the right-claim to effective application of criminal-law mechanisms and the due process rights, or we would have tensions and conflicts between public interests and rights, which is a matter falling out of the scope of the present discussion.135 132 Basic liberties in this context are understood as Rawlsian constitutional and legal restrictions or a structure of institutions defining rights and duties (see further: Rawls, supra n. 2.29, p. 177). 133 Note that this discussion does not concern victims’ participative or social rights such as support and assistance during the proceedings or measures designated at minimising secondary victimisation by securing special participation in the proceedings and in particular evidence taking. 134 The concept of due process rights in this context denotes various fair trial guarantees conceived as a right of the accused and therefore surpasses the scope of the provision of Article 6 echr. 135 The confrontation of the public interest and the right-claim to effective application of criminal-law mechanisms was in fact discussed in the preceding section (see supra 6.1.4), whereas the confrontation of the rights of the accused and the public interest is not a matter to be addressed in this study. A distinction should nevertheless be made between purely public-interest values and the public-interest values that contain human rights elements; such as, for example, prescription which is an instrumental value of criminal procedure and at the same time implicated in the right of the accused to legal certainty under Article 7 echr (ECtHR (Judgment) Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96 and 33210/96, 22 June 2011, para. 146). See further: Xu and Wilson, supra n. 6.124, p. 37. For a distinction between the conflict of rights and the conflict

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When arranged in this manner the right-claim to effective application of criminal-law mechanisms and the due process rights are the mechanisms of an individual’s protection against possible utilitarianism of the criminal justice authorities, which should operate simultaneously to the benefit of the victim and the accused respectively.136 These are therefore a sort of basic rights which are, on the one hand, designed to secure an effective enforcement of criminal-law protection of human rights and, on the other hand, the protection of personal autonomy of the accused from arbitrary actions in reaching the perceived end of criminal prosecution. As such they inform and determine any state action in the course of the criminal proceedings,137 and often function in practical reasoning as a border control mechanisms of the respective human rights protection.138 By accepting the existence of these basic rights of the individuals implicated in the criminal process, which exist and operate simultaneously as the relevant procedural guarantees to the benefit of the respective agent, we are essentially contemplating the implications of Rawlsian public conception of justice.139 For Rawls, a public conception of justice designates arrangement of a society in which “(1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles.” In such a case, members of the society may put forth excessive demands on one another,

136 137 138 139

between human rights and other interests see: E. Brems, “Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms” 17(1) Human Rights Quarterly (2005), p. 300. Note also that some authors have argued that the fact that some interests are classified as rights should never be decisive in examining the substance of a claim concerning possible confrontations or conflicts (J. Gerards, “Fundamental Rights and Other Interests: Should it Really Make a Difference?”, in E. Brems (ed.), Conflict Between Fundamental Rights (Antwerp, Intersentia 2008), p. 688). See further for the discussion on restriction of political utilitarianism: Dworkin, supra n. 5.5, p. 277. K. Möller, “Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional Rights”, 29(4) Oxford Journal of Legal Studies (2009), p. 785. See further: E. Brems, “Human Rights: Minimum and Maximum Perspectives”, 9(3) ­Human Rights Law Review (2009), pp. 349–372. For the growing relevancy and acceptance of Rawls’ theories for the resolution of conflicts of rights see: L. Zucca, “Conflicts of Fundamental Rights as Constitutional Dilemmas”, in E. Brems (ed.), Conflict Between Fundamental Rights (Antwerp, Intersentia 2008), p. 33.

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but they nevertheless acknowledge a common point of view from which their claims may be adjudicated.140 Indeed, as has already been contemplated on the relevance of the principle of rule of law in the contemporary human rights discourse and in particular its implications in the charging process of criminal procedure, we can further observe the relevancy of such contemplation for the connection between a legal system and the precepts of justice as regularity. Rawls explains this in the following terms: A legal system is a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation. When these rules are just they establish a basis for legitimate expectations. They constitute grounds upon which persons can rely on one another and rightly object when their expectations are not fulfilled. If the bases of these claims are unsure, so are the boundaries of men’s liberties.141 The particular structure of criminal procedure could be therefore devised as a coercive order of public rules arranging the interests of rational persons implicated in a criminal matter (the victim and the accused) for the purpose of regulating their conduct with regard to the public authorities, thus providing the framework for social cooperation with a view to reaching a just resolution of the criminal matter. The individual expectations with regard to the resolution of the matter are legitimate in so far as the public rules governing the actions of the state authorities towards the victim and the accused are just. In other words, the victim can rely on the guarantees of the right-claim to effective application of criminal-law mechanisms, and the accused can rely on 140 Rawls, supra n. 2.29, p. 4. This is a commitment related to the first of the two principles of justice devised by Rawls. His two principles of justice are stated in the following terms: “First: each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others. Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” (Ibid., p. 53). See further for the discussion on Rawls’ principles of justice: G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford, Oxford University Press 2007), pp. 105–110; C. Stratilatis, “Why a List of Basic Liberties? A Defence of Rawls’s first principle of Justice Against Gray’s Incommensurability-Indeterminacy Thesis”, 4 Annuaire International des droits de l’Homme (2009), pp. 539–556. 141 Rawls, supra n. 2., p. 207.

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the due process rights, as border control mechanisms of a just resolution of the matter, the observance of which constitutes a basis for legitimate expectations. When these borders are unjustifiably encroached to the extent capable of frustrating the perception of their observance and thus undermining a just resolution of the matter, the parties can rightly object since their expectations in such a case are not fulfilled. On the other hand, if there has been no such adverse infringement of their rights, there is nothing to object to as the legitimate expectations have been duly met. More concretely, this implies that when, on the one hand, the requirements of the right-claim to effective application of criminal-law mechanisms are duly observed and, on the other hand, the requirements of the due process rights as well, that is to say when the borderline of protection has not been relevantly encroached, the resolution of a criminal matter, from the perspective of human rights of the individuals implicated in the matter, is inevitably just. The question of substantive preference of the resolution falls outside the scope of human rights requirements and is exclusively in the sphere of public rules and discretion. Hence, for example, in a situation where the requirements of the right-claim to effective application of criminal-law mechanisms have been duly complied with, the victim could not invoke the mechanisms of his or her human rights protection challenging the possible acquittal of the accused. Similarly, the accused whose due process rights have been duly observed cannot invoke the mechanisms of human rights protection challenging the possible conviction.142 This contemplation of a just arrangement of matters could be observed in the following figure (Figure 6.2). When conceptualised in this manner, the right-claim to effective applica­ tion of criminal-law mechanisms and the due process rights could be understood as immanent limits on the relevant legal subjects’ rights induced by the necessity to protect other basic rights143 and designed with the purpose 142 This discussion, however, does not go into the question whether and under which circumstances the relevant requirements of criminal law require control of the substantive preference of the resolution, or whether in this respect the individuals implicated in the proceedings have certain (instrumental) rights, such as the right to appeal on the grounds of errors of fact by the trial court. 143 The right-claim to effective application of criminal-law mechanisms and the due process rights are, as we have seen, prima facie reasons and thus operate as principles, that is to say optimisation requirements for the realisation of the just resolution. See further on the operation of constitutional principles and rules: K. Möller, “Balancing and the structure of constitutional rights”, 5(3) International Journal of Constitutional Law (2007), pp. 454–457.

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(A) RIGHT TO EFFECTIVE APPLICATION OF CRIMINAL-LAW MECHANISMS

PUBLIC ACTION

JUST RESOLUTION

(B) DUE PROCESS RIGHTS

Figure 6.2 A just resolution of a criminal matter

of maintaining unity of the legal arrangement of criminal procedure.144 At the same time, however, they inevitably lead to a limitation of the rights of others,145 but this limitation is a necessary sacrifice for the purpose of maintaining harmony without which the just resolution cannot be attained.146 ­Negating the necessary limitation on either side of the relationship means rejecting the possibility of achieving the just resolution and consequently rejecting the possibility of the existence of individual rights. It follows that the argument of harmonious arrangement is, in the words of Gewirth, “dialectically necessary in that it proceeds from what all agents logically must claim or accept, on pain of contradiction.”147 This idea nevertheless implies that although the victim and the accused are reasonably required to accept some losses and frustrations along the way of achieving the just resolution of a criminal matter, their rights to effective application of criminal-law mechanisms and the due process guarantees respectively are designed to pick out the interests that are not to be traded off against the other competing interests. These rights are thus trump cards which are, as Jeremy Waldron explains, to be played in the last resort to protect the basics of the individual freedom and well-being.148

144 L. Michael, “The Double Conflict: Human Rights in Conflict Within and Between Legal Systems”, 4 Annuaire International des droits de l’Homme (2009), p. 312. 145 M. Hottelier, “Les conflits de droits de l’homme et la sécurité juridique”, 4 Annuaire International des droits de l’Homme (2009), p. 121. 146 Zucca, supra n. 6.139, p. 35. 147 Gewirth, supra n. 5.3, p. 1149. 148 J. Waldron, “Rights in Conflict”, 99(3) Ethics (1989), p. 508.

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The construed harmony essentially rejects a contemplation of the genuine conflict of the two rights,149 as we are not in a domain of the rights conflict where only one of them is entitled to be enforced. In particular, the object of the just resolution, claimed by the victim and the accused, is not attainable by only one of the two in a way to generate a conflict in which one of the sides must prevail.150 We are therefore not in the territory where we have two duties which are not compossible in the sense that the performance of the duty to effective application of criminal-law mechanisms owed to the victim is not possible if the duty to observe the due process rights owed to the accused is secured.151 In other words, the observance of one duty by the state is not incompatible with its observance of the other duty and therefore there is no genuine conflict of rights.152 No confusion should be created by the fact that these rights are put into effect by their interaction with the public-interest elements in criminal prosecution related to, for instance, the making of adequate choices in the allocation of preferences or resources. In this case, the state could be seen as the advocate of the other party in the sense that it privatises the general interest in favour of an individual.153 Nevertheless, this could generate a conflict between rights and public good only where such a conflict, given the existence of the overall collective goal (just resolution of a criminal matter), implies only a lato sensu or possibly an indirect conflict rather than a genuine conflict of rights.154 Such conflicts could also be designated as non-genuine conflicts where, on the one side, there are rights of the victims or the accused and, on the other side, instrumental rights that are constitutionally protected as institutions of law but are not established as rights.155 We are therefore faced with a conflict only in so far as it is understood in a purely abstract instrumental sense of designating the reason-blocking 149 Except perhaps in certain idiosyncratic cases, given that it is impossible to eliminate all conflicts between human rights (see further: Xu and Wilson, supra n. 6.124, p. 39). 150 R.I. Holaind, “Natural Law and Legal Practice”, Lectures delivered at the Law School of Georgetown University (1899), pp. 276–279. 151 Waldron, supra n. 6.148, p. 506. 152 Ibid., p. 514. 153 P. Ducoulombier, “Conflicts between Fundamental Rights and the European Court of ­Human Rights: An Overview”, in E. Brems (ed.), Conflict Between Fundamental Rights (­Antwerp, Intersentia 2008), p. 222. 154 Zucca, supra n. 6.139, pp. 25–26; F. Sudre, “Les conflits de droits de l’homme”, 4 Annuaire International des droits de l’Homme (2009), p. 368. 155 C. Tsiliotis, “Resolution of fundamental rights conflict through the state’s duty to protect them”, 4 Annuaire International des droits de l’Homme (2009), pp. 334–336.

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borderlines to arbitrary state intervention. However, the abstract weight of the two rights, in the sense of their normative status in the structure of criminal procedure, is necessarily the same156 as otherwise the expected resolution of the matter could only be more just for one side. This accordingly requires the drawing of a clear distinction between the arrangement of rights in the context of the structure of criminal procedure and the abstract assignments of weight to a right in a socially undifferentiated manner, where the idea of symmetry of rights in general (for example right to life and right to free speech) might seem implausible.157 The fact that the right-claim to effective application of criminal-law mechanisms could in the circumstances be derived from an absolute right does not change the above discussed arrangement. This follows from the very fact that the requirement of effectiveness of positive action of criminal investigation and prosecution is inevitably qualified by, as we have seen, the fact that there is no absolute right to obtain prosecution and conviction of an individual when there are no culpable failures of the authorities in the observance of their duties. We are therefore not discussing in general whether the observance of obligations inherent in the substantive aspect of an absolute right, such as the right not to be tortured under Article 3 echr, or the protective perimeter of its substantive protection, could perhaps trump some other competing rights or considerations of public good.158 We are rather concerned with the question whether the state authorities’ observance of the requirement of effectiveness 156 See further on the assigning of “abstract weight:” L.B. Tremblay, “An egalitarian defense of proportionality-based balancing”, 12(4) International Journal of Constitutional Law (2014), p. 879; M. Klatt, “An egalitarian defense of proportionality-based balancing: A reply to Luc B. Tremblay”, 12(4) International Journal of Constitutional Law (2014), pp. 892–894. 157 Waldron, supra n. 6.148, p. 514; See further for the discussion on the (in)compossibility or rights in general: S. Caney, “Diversity and the Lexical Priority of the Right to Equal Freedom”, 17 Oxford Journal of Legal Studies (1997), pp. 148–152. 158 See further on the legal nature of absolute rights: N. Mavronicola, “What is an ‘absolute right’?, Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights”, 12(4) Human Rights Law Review (2012), pp. 723–758; S. Greer, “Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case”, 11(1) Human Rights Law Review (2011), pp. 67–89; S. Smet, “Conflicts between Absolute Rights: A Reply to Steven Greer”, 13(3) Human Rights Law Review (2013), pp. 469–498; Greer, supra n. 6.126, pp. 101–137; M.K. Addo and N. Grief, “Does Article 3 of The European Convention on Human Rights Enshrine Absolute Rights?”, 9 European Journal of International Law (1998), pp. 510–552; O. Gross, “The Prohibition of Torture and the Limits of the Law”, in S. Levinson (ed.), Torture: A Collection (Oxford, Oxford University Press 2004), pp. 229–253; S. Greer, “Constitutionalizing Adjudication under the European Convention on Human Rights”, 23(3) Oxford Journal of Legal Studies (2003), pp. 415–419.

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of the right-claim to effective application of criminal-law mechanism contradicts their observance of the due process rights of the defendant in criminal proceedings. Moreover, whereas the absolute nature of a higher core right is conducive to the requirement of applicability of the right-claim to effective application of criminal-law mechanisms, it should be noted that this consideration is limited only to the assignment of the part (A) in the structure observed in Figure 6.2, which, in itself, (still) does not in any manner conflict with the due process rights of the accused. Accordingly, the above devised lato sensu conflict arises only when the right-claim to effective application of criminal-law mechanisms is put into action by the criminal justice authorities’ observance of the requirement of effectiveness of that right. In other words, the implication of the right itself should be distinguished from its exercise in cases of specific procedural conditions, where the right, irrespective of its inalienable character, cannot function in an absolute manner.159 By adhering to the conceptual harmony of the observance of the right-claim to effective application of criminal-law mechanisms and the due process rights we are essentially contemplating that these rights should not be individually balanced, in the sense of absolute trumps, but rather mutually conformed into a functional structure. Accordingly, we are thereby accepting that the functioning of these rights, that is to say securing their central range of protection within the structure of criminal procedure, must be regulated rather than restricted. Regulation in this sense relates to the question of time, manner and space types of the relevant rules,160 in other words to the rules on optimisation of the central ranges of protection. 2.3 Optimisation of the Central Ranges of Protection It has already been observed above that the procedural obligation in human rights protection, conceived in this study as the right-claim to effective application of criminal-law mechanisms, can be stated in practical reasoning as a requirement of adequacy of the investigative and prosecutorial process which in the given factual and legal circumstances must be satisfied to the greatest possible extent. We have thereby stated the right-claim to effective application of criminal-law mechanisms in the form of a principle rather than a simple 159 For that would imply an absolute irrelevancy of the due process rights of the accused and an altogether redundant function of criminal proceedings. See further: Holaind, supra n. 6.150, p. 284. 160 Zucca, supra n. 6.139, p. 33.

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rule which means that in the context of its weighing it functions as, what Alexy calls, an optimisation requirement.161 Determining its weight from this perspective relates to the operation of balancing, which is an aspect of a more complex and comprehensive principle of proportionality. It essentially consists of optimisation relative to competing principles that Alexy breaks down into three stages. The first stage relates to the establishing of the detriment (or the degree of non-satisfaction) to the first principle. The second stage seeks to establish the importance of satisfying the competing principle. And the third stage determines whether the importance of satisfying the latter principle justifies the detriment to the former. Alexy’s example of an operation within an inferential system implicit in the balancing shows that the concrete weight of a principle is in fact a relative weight since the concrete weight of interference and the concrete importance of the competing principle are established.162 For the competing rights163 that function within a strict, formalistic and dynamic arrangement of criminal procedure, such as the right-claim to effective application of criminal-law mechanisms and the due process rights, an optimisation through such weighing could prove to be a tedious endeavour which could hamper a harmonious and swift transfer of arguments and positions through the relevant successive stages of the process. Moreover, given that in this study we are discussing conceptual matters related to the function of criminal prosecution, we should rather search for optimisation through a principal balancing of the competing ranges of protection assigned to the right-claim to effective application of criminal-law mechanisms and the due process rights.164 161 R. Alexy, “Balancing, constitutional review, and representation”, 3(4) International Journal of Constitutional Law (2005), p. 573. 162 Ibid., pp. 574–577. See further on the principle of proportionality and balancing: D. Kyritsis, “Whatever Works: Proportionality as a Constitutional Doctrine”, 34(2) Oxford Journal of Legal Studies (2014), pp. 395–415; A.R. Mowbray, “A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights”, 10(2) Human Rights Law Review (2010), pp. 289–317; Zucca, supra n. 6.139, pp. 28–29. 163 It should be remembered, however, that these rights are not in a conflict in the sense that there is only one object which only one party to the dispute can have. There is therefore only a lato sensu conflict in respect of which even the critics of the symmetry approach accept that the symmetric presentation of the competing interests and the evaluation of their importance might be a viable consideration (D. Barak-Erez and R. Shapira, “The Delusion of Symmetric Rights”, 19 Oxford Journal of Legal Studies (1999), p. 308). 164 The central distinction between principal and ad hoc balancing lies in the fact that the former is applicable pro futuro whereas the latter relates to the past or existing situations

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In other words, we should attempt to explore the possibility of a technical normative preservation of the desired symmetry of criminal process. It is suggested that this can be attained on the basis of three conceptual premises. Firstly, the concept of symmetry should be clearly devised and stated on a principal abstract level; secondly, a definitional balancing of the competing rights must be devised; and thirdly, the requisite symmetry should be observed through procedural rules. With regard to the first premise it could be asserted that in an abstract general sense the harmony or arrangements within the structure of criminal process is mandated by the very fact that a general definition of rights implies that a right-holder (the victim or the accused) may claim that others (the competent state authority) are bound to perform certain acts in his or her behalf or at his or her request so long as he or she does not exceed the established, or agreed upon, constitutional or, more precisely, human rights limits.165 Put differently, each party to the relationship is required to fully realise the existence of his or her rights and to acknowledge that the opposing party equally benefits from the relevant human rights standards, which may in the circumstances compete with the first party’s established rights. There is therefore a principal presumptive equality of the competing rights.166 Such an understanding of consistency in mutual claims was luminously explained by Gewirth in his theory on the principle of generic consistency, which he conceived in the following manner: “Act in accord with the generic rights of your recipients as well as of yourself.”167 With regard in particular to the conflict of rights, Gewirth’s thesis rests on the following premise: [T]here must be mutual respect for freedom and well-being among all prospective purposive agents. Departures from this mutual respect are (see further: Xu and Wilson, supra n. 6.124, p. 41). Ashworth devised the following test for the ad hoc balancing between the victim’s rights and the rights of the accused: (1) whether the rights of the defendant should be curtailed – any such action should be justified; (2) curtailment of some of the defence rights would require a justification related to a high probability that a Convention right of the victim would be violated as a result of application of normal criminal procedure, where the defence rights would not be normally curtailed; (3) the question of the degree of probability of rights infringements in reality should be explored (see further: Ashworth, supra n. 6.74, pp. 78–79). 165 Holaind, supra n. 6.150, p. 268. 166 L. Cariolou, “The Search for an Equilibrium by the European Court of Human Rights”, in E. Brems and J. Gerards (eds.), Shaping Rights in the echr (Cambridge, Cambridge University Press 2013), pp. 165 and 175. 167 Gewirth, supra n. 5.3, pp. 1150 and 1155.

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justified only where they are required either to prevent or rectify antecedent departures, or to avoid greater departures, or to comply with social rules that themselves reflect such respect in the ways indicated in the procedural and instrumental applications of the [principle of generic consistency].168 When dealing with the institutional applications of the principle of generic consistency that are conducive to the legal enforcement and political effectuation of human rights, Gewirth devises two modes of application of this principle: direct and indirect. The former relates to the duties imposed on the actions of individual agents, whereas the latter, which is of a higher importance for the present discussion, concerns the requirements imposed primarily on social rules and institutions. These indirect applications may be procedural and instrumental. The procedural applications concern the acceptance of the existence of certain consensual procedures by the interested persons, freely available to them; whereas the instrumental ones provide that the social rules and institutions are morally right if they seek to protect and support the wellbeing of all persons. Moreover, the instrumental applications, in their static component, serve to protect persons from the violations of their rights and to punish such violations.169 Accordingly, it could be asserted that both the rightclaim to effective application of criminal-law mechanisms and the due process rights operate in the overall structure of criminal procedure as mandated instrumental effectuations of the principle of generic consistency of rights. The principal balancing of these competing rights under the second conceived premise of a technical normative preservation of symmetry is essentially a search for definitional margin in which the concrete competing rights operate within the structure of criminal procedure. In the context of the right-claim to effective application of criminal-law mechanisms, reduced as a procedural demand from a higher core or fundamental right, we are essentially 168 Gewirth develops this thesis by conceiving three general criteria for resolving the conflicts of rights which are arranged under the headings of progressively lesser importance. The first criterion is the prevention or removal of transactional inconsistency, that is to say justifiability of an action preventing or removing threats to the generic consistency given that punishment and correction of antecedent basic harm is essentially mandated by the principle of generic consistency. The second criterion provides that one right takes precedence over another if the good implied in the former right is more necessary for the possibility of action, and if the right at issue cannot be protected without violating the latter right (see Ibid., pp. 1161–1162). 169 Ibid., pp. 1162–1164.

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in search for a democratic limit of an action.170 This is in the first stage determined by the question of actual experience of a situation in which a breach of a human right occurred, and in the second stage with the question of actual responsibility under the relevant human rights norm.171 More concretely, the democratic limit determining the definitional scope or borderline of protection of the right-claim to effective application of criminallaw mechanisms is determined by the particular aspects of applicability and effectiveness of the procedural protection. At the same time, the due process rights are determined with regard to the particular procedural implications of the right to a fair trial. Thereby, by conceiving the definitional scope of the two rights within the structure of criminal procedure, we are essentially drawing the two lines (A and B) observed above in Figure 6.2. In this figure we have observed, however, only the external borderline of the rights protection at issue and have deliberately left the question of their core undetermined. The central reason for that is that the cores of rights, as essential inalienable aspects of rights, are inherently relative and almost necessarily subjective. In particular, as contended by some authors, the cores of rights, or the question whether the essence of a right was violated, can be viewed objectively from the perspective of the enquiry whether the right still has value for the society; and subjectively, from the perspective of the value of a right for an individual. Moreover, the cores of rights could be assigned with a value of absolute limits which can never be transgressed (absolute approach) although it has to be accepted that this would be a futile endeavour as the designation of the core only becomes clear when examined against a particular background (relative approach).172 Indeed, as we have seen in the context of the right-claim to effective application of criminal-law mechanisms, a violation of the authorities’ obligation to comply with the requirement of effectiveness will only arise in case of culpable failures capable, in the circumstances, of undermining the capacity of the proceedings to establish the responsibility for a human rights violation and to bring those responsible to justice. Thus, for example, in some instances the lack of effective victim participation in the proceedings may be conducive 170 Xenos, supra n. 2.37, p. 147. 171 L. Lavrysen, “The scope of rights and the scope of obligations”, in E. Brems and J. Gerards (eds.), Shaping Rights in the echr (Cambridge, Cambridge University Press 2013), pp. 165 and 175. 172 G. Van der Schyff, “Cutting to the Core of Conflicting Rights: The Question of Inalienable Cores in Comparative Perspective”, in E. Brems (ed.), Conflict Between Fundamental Rights (Antwerp, Intersentia 2008), pp. 132–135.

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to this end, whereas in the majority of other cases it may amount only to a secondary or isolated failure or omission. This accordingly excludes the possibility of assigning this particular procedural aspect to the core of the right-claim to effective application of criminal-law mechanisms just as it does not allow for its absolute exclusion. It therefore follows that the conceptualisation of the definitional balancing should be oriented towards the determination of the external borderlines of protection as the question of maximum optimisation requirements will be determined with regard to the maximum desired protection of the two competing rights and not necessarily their essential inalienable aspects. Now that we have devised the object of symmetry we can move to the final premise of optimisation conceived above, under which the requisite symmetry should be observed through procedural rules. A proposal for optimisation often discussed in theory, which could be seen as procedural in nature, is the concept or principle of practical concordance.173 The concept of practical concordance was developed in German constitutional theory by Konrad Hesse as an interpretative method and as a limitation of fundamental rights. Under this proposal, the fundamental rights must relate to one another in such a way that each competing right must be put into effect so that none of them must be implemented at the expense of the other. This optimisation is, according to Hesse, mandated by the unity of constitution. Accordingly, the conflicting rights and interests must be subjected to limitations so that each of them can attain its optimal effect. Limitations therefore have to be proportionate in the circumstances, which means that they must not be broader than to establish a concordance between the competing rights.174 It follows that the method of practical concordance is essentially simultaneous optimisation of the competing rights and although it does not exclude the possibility of one right prevailing over another, it secures this to occur in a less intrusive means for both rights.175 On the other hand, it could be seen as a general approach securing the casuistic solutions which allows for the 173 O. De Schutter and F. Tulkens, “Rights in Conflict: The European Court of Human Rights as a Pragmatic Institution”, in E. Brems (ed.), Conflict Between Fundamental Rights (Antwerp, Intersentia 2008), p. 206; Michael, supra n. 6.144, p. 312; Brems, supra n. 6.135, p. 303. 174 T. Marauhn and N. Ruppel, “Balancing Conflicting Human Rights: Konrad Hesse’s Notion of ‘Praktische Konkordanz’ and the German Federal Constitutional Court”, in E. Brems (ed.), Conflict Between Fundamental Rights (Antwerp, Intersentia 2008), pp. 279–280. 175 Ducoulombier, supra n. 6.153, p. 244.

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preservation of unity of the relevant instruments providing for the human rights in friction.176 In their adjustment of this theory, devised as institutional and procedural in nature, Olivier De Schutter and Françoise Tulkens made a proposal for practical concordance based on four components. Firstly, they consider that the background conditions leading to a conflict of rights should be institutionally transformed so as to either lessen or remove the possible conflicts. Secondly, in the case of genuine conflicts where the changes in the background conditions would not suffice, the relevant procedures must be set up so as to allow for an open deliberation of the matters. Thirdly, substantive standards should be developed through adjudication, that is to say through the relevant procedural safeguards of adjudication. And lastly, two principles should be the guiding force for achieving the concordance of rights: personal autonomy and democratic society.177 We could conclude from the above that the function of procedure in optimisation of the central ranges of protection by the two competing rights sharing the same commensurable value of a just could be seen as a mechanism of preserving the stability of the human rights discourse by averting arbitrariness and securing the requisite harmony.178 The optimisation could therefore be seen as a set of rules regulating the behaviour of human rights taken together and, as such, it could lead to an acceptance of the necessary sacrifices of rights in certain cases. Lorenzo Zucca distinguishes two types of these rules, i.e. substantive rules of priority and procedural rules. The substantive rules can be relevant for the relationship between different rights and in such a case they can be seen as internal to the fundamental rights system. Accordingly, when two rights are competing we are required to set out clear rules allowing the determination of which of the two takes priority over the other. However, such priority is essentially qualified as relevant arguments in favour of overruling the conceived priority could always arise. At the same time, the substantive rules could also concern the system of fundamental rights as a whole, which would create an effect of qualified priority of human rights with regard to other countervailing reasons, such as public interest. On the other hand, the procedural rules regulating the operation of human rights concern the requirement of distribution

176 M. Verdussen and N. Bonbled, “La hiérarchie des droits fondamentaux dans les ordres juridiques internes”, 4 Annuaire International des droits de l’Homme (2009), p. 86. 177 De Schutter and Tulkens, supra n. 6.173, pp. 206–215. 178 Hottelier, supra n. 6.145, pp. 118–120.

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of powers, first between different branches of government and then between the state and individuals.179 The above discussion shows that the three conceptual premises for optimisation of the range of protection of the right-claim to effective application of criminal-law mechanisms and the due process rights arguably favour a procedural solution as the most appropriate method of resolution of the lato sensu conflict between these rights interrelated in the common structure of criminal procedure. In the ordinary functioning of the proceedings the two rights operate as aligned borderline limits or the ultimate trump cards of protection of the individual interests involved, favouring the same ideal of a just resolution of the matter. There is therefore no conceptual conflict in their mutual alignment in the same structure as long as each side of the relationship duly observes the limits. When that is not the case, then the channel of transposition of the matter to a just resolution is congested and thus the procedural mechanisms should exist so as to reinstate the ordinary flow of arguments. The substance of the dispute is here irrelevant as the scope of just resolution of the matter from the perspective of human rights law is limited to the solution attained by the observance of individual procedural rights. Accordingly, the optimisation of the rights of those implicated in a criminal matter should operate as a procedural mechanism of alignment of positions to their ordinary arrangement as observed above in Figure 6.2. It follows that the purported conflict arises only when a disturbance on either side of the relationship occurs, although due to the existence of the procedural mechanisms it can only be of a provisional nature. We can observe this contemplation on the example of specific implications of the ne bis in idem principle on the capacity of a criminal justice system to comply with its obligations under the right-claim to effective application of criminal-law mechanisms in human rights protection. Procedural Optimisation in the Context: The Example of ne bis in idem 2.4.1 The ne bis in idem Principle in International Human Rights Law There are not so many rights enshrined in human rights law such as ne bis in idem that are intrinsically dependent on the doctrine of criminal law and at the same time capable of affecting other diverse spheres of social and political life.180 The basis for such assertion looks at the reference points to its

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179 Zucca, supra n. 6.139, pp. 36–37. 180 The relevancy of ne bis in idem across the observed range of social and legal spheres can generally be conceptualised in the context of the social contract theory. This matter was

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determinative elements such as “acquittal” or “conviction,” “trial” and “punishment,” but also to the consequently related questions of criminal law that have to be answered in the interpretation of the ne bis in idem principle, such as the multiple offences (concours idéal d’infractions) problem. At the same time the ne bis in idem principle has its transnational political implications at the interstate level,181 placing the problem of its interpretation and application in the sphere of legal certainty and equity in the dynamic process of interstate integrations182 and the mutual trust between domestic criminal justice systems,183 as well as the implications on the questions of complementarity of international criminal justice.184 Structurally, the scope of application of the ne bis in idem principle is determined by three sources of public international law, presumably domesticated in the national constitutional and legal discourse: (1) international human rights law, (2) the law regulating international criminal tribunals, and (3) multilateral treaties on judicial cooperation in criminal matters. In addition, in the contemporary European political arrangement, the transnational application of the ne bis in idem principle is commonly asserted in legal theoretical discussions and judicial practice as an important aspect of vertical (enforcement of eu policies in the Member States) and horizontal (enforcement of eu policies in a transnational setting) dimension of European integration.185 In view of this complexity of the scope of application of the ne bis in idem principle one digression is in order. The present discussion on the implications of the ne bis in idem principle will be limited to the effects of its human rights

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addressed in a study by Robin Lööf, who observed the function of criminal law as a defining factor of the relationship between an individual and the collective after the determination of a criminal matter, that is to say after final acquittal or conviction. In such as state of affairs the ne bis in idem principle is an expression of a normative status of the convicted or acquitted individual vis-à-vis the society (R. Lööf, “54 cisa and the Principles of ne bis in idem”, European Journal of Crime (2007), pp. 320–322). Article 54 cisa. See the opinion of the Advocate General Ruiz-Jarabo Colomer in the cjeu Joined Cases C-187/01 and C-385/01 Gözütok and Brügge. See, for example: Articles 35–37 of the European Convention on the Transfer of Proceedings in Criminal Matters (cets No. 073). Article 20 of the Rome Statute. J.A.E. Vervaele, “ne bis in idem: Towards a Transnational Constitutional Principle in the eu?” 9(4) Utrecht Law Review (2013), pp. 213, 217–227. See also: M. El Zeidy, “The Doctrine of Double Jeopardy in International Criminal and Human Rights Law”, 6 Mediterranean Journal of Human Rights (2002), pp. 198–240.

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law dimension, principally determined by the echr law, on the arrangement of relations in criminal procedure at the inter-state level. It will be observed from the perspective of desired symmetry of human rights guarantees within the structure of criminal procedure in the context of the methodological premise of procedural optimisation of competing rights. In other words, the right of the accused to immunity from multiple prosecutions will be aligned with the right of the victim to effective application of criminal-law mechanisms in instances of frictions observed above in the introductory part to this section. Accordingly, the present discussion on the ne bis in idem principle is instrumental rather than descriptive or conceptual. This therefore puts out of its scope any detailed elaboration of some possible further effects of the devised arrangement of matters from the perspective of human rights law on the divergent aspects of international186 and transnational cooperation and integration.187 Before proceeding with the discussion on procedural optimisation of ne bis in idem and the right-claim to effective application of criminal-law mechanisms we are required to make an excursus on the meaning and purpose of ne bis in idem as a human (or fundamental) right guarantee in contemporary discourse of criminal procedure. The prohibition of multiple prosecutions enshrined in the ne bis in idem maxim developed through legal history as a principally determined limit to the society’s and the victim’s entitlement to satisfaction through prosecution 186 This complexity of the range of application of the ne bis in idem principle can be observed, for instance, in a study which, from the perspective of international criminal law only, devised two areas of its application: intra-jurisdictional and inter-jurisdictional context. In the former context the ne bis in idem principle operates as a mechanism of individual protection whereas in the latter it becomes more dedicated to organising inter-jurisdictional concurrence (see further: D. Bernard, “ne bis in idem – Protector of Defendants’ Rights or Jurisdictional Pointsman?”, 9 Journal of International Criminal Justice (2011), pp. 863–880). The ne bis in idem principle can arguably have divergent implications. See further, in the same context, the discussion on the ne bis in idem principle as a protector of the integrity of the system of international criminal justice and a protector of the rights of an individual: L. Trigeaud, “La règle ne bis in idem devant les juridictions pénales internationales”, in M. Puéchavy (ed.), Le principe ne bis in idem (Limal and Brussels, Anthemis and Nemesis 2012), pp. 46–47. 187 See further on the diversity of conceptions of the ne bis in idem principle in the mutual cooperation at the eu level: C. Ryckman, G. Vermeulen and W. De Bondt, “From a diversified present to a coherent future: ne bis in idem applied to immunity from prosecution and double prosecutions”, in M. Cools, B. De Ruyver, M. Easton e.a. (eds.), European criminal justice and policy (Antwerpen, Maklu 2012), pp. 65–92.

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and punishment of a criminal offence.188 Although the contemporary legal discourse on ne bis in idem tends to complicate some obvious aspects of its application,189 all these divergent understandings are based on the adage nemo debet bis vexari pro une et eadem causa (no one should have to face more than one prosecution for the same offence).190 In the Continental Systems this is expressed as autrefois acquitté/convict de même félonie or autorité de la chose jugée or Erledigungsprinzip, whereas in the Common Law Systems it is construed under the terms autrefois convict/acquit or double jeopardy.191 In the practical reasoning of contemporary human rights discourse at the intra-state level the application of the ne bis in idem principle is marked with intricacy related to multiple factors, such as states’ reservations to its enactments in international human rights instruments,192 and the purported problems of coherence in the interpretation of its architectural components.193 In terms of the ECtHR case-law the matter has been settled by the Grand Chamber judgment of Sergey Zolotukhin v. Russia.194 According to Zolotukhin, 188 El Zeidy, supra n. 6.185, p. 184; J. Lelieur, “‘Transnationalising’ ne bis in idem: How the Rule of ne bis in idem Reveals the Principle”, 9(4) Utrecht Law Review (2013), p. 201. 189 A.R. Amar, “Double Jeopardy Law Made Simple”, 106 The Yale Law Journal (1997), p. 1807. 190 G. Conway, “ne bis in idem in International Law”, 3 International Criminal Law Review (2003), p. 221. 191 El Zeidy, supra n. 6.185, pp. 198–199; Conway, supra n. 6.190, pp. 221–227; Lelieur, supra n. 6.188, pp. 199–201; B. Van Bockel, The ne bis in idem Principle in eu Law (Alphen aan den Rijn, Kluwer Law International 2010), pp. 30–37. 192 Vervaele, supra n. 6.185, pp. 213–214. See the list of reservations and declarations to the i­ ccpr (https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv -4&lang=en, last visited 1 July 2015). See further: hrc, General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, u.n. Doc. (HRI/GEN/1/Rev.1 at 14), para. 19. See also list of reservations and declarations to Article 4 of Protocol No. 7 (www.coe .int/en/web/conventions/full-list/-/conventions/treaty/117, last visited 1 July 2016). Note that out of 47 coe Member States, two have signed but not ratified this Protocol (the Netherlands and Germany) and one has neither signed nor ratified it (the United Kingdom). However, although these reservations formally exclude (some aspects of) the applicability of international human rights law aspects of ne bis in idem in certain jurisdictions, they do not preclude its influence on the shaping of the relevant national legal discourse. See in this context the example of the United Kingdom in the Law Commission report on “Double Jeopardy and Prosecution Appeals” (Law Com No. 267), 24 January 2001, p. 4. 193 Vervaele, supra n. 6.185, p. 214. 194 ECtHR (Judgment) Sergey Zolotukhin v. Russia [gc], no. 14939/03, 10 February 2009. Note that there is already abundant case-law duly following the interpretation of ne bis in idem under Zolotukhin, which, as a Grand Chamber case, secured the mechanism of

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the architectural structure of ne bis in idem in the echr system turns around three central considerations: (1) whether there are two sets of successive proceedings which are criminal in nature; (2) whether the offences for which the defendant was prosecuted were the same (idem); and (3) whether there was a duplication of proceedings (bis). The answer to the first question depends on the autonomous determination of the existence of a “criminal charge” and “penalty” under Articles 6 and 7 echr based on what is commonly known as Engel criteria.195 For instance, a criminal charge will exist in the case of a traffic offence,196 or a violent offence designated as minor197 or administrative198 under the relevant domestic law. The second criterion (idem) is determined based on the following test: the presence of “facts which constitute a set of concrete factual circumstances involving the same defendant and [which are] inextricably linked together in time and space, the existence of which must be demonstrated in order to secure a conviction or institute criminal proceedings.”199 This is commonly

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consistency of case-law as envisaged under Articles 30, 31 and 43 echr. See, for instance: ECtHR (Judgment) Ruotsalainen v. Finland, no. 13079/03, 16 June 2009; ECtHR (Judgment) Maresti v. Croatia, no. 55759/07, 25 June 2009; ECtHR (Judgment) Kurdov and Ivanov v. Bulgaria, no. 16137/04, 31 May 2011; ECtHR (Judgment) Asadbeyli and Others v. Azerbaijan, no. 3653/05 et al., 11 December 2012; ECtHR (Judgment) Khmel v. Russia, no. 20383/04, 12 December 2013; ECtHR (Judgment) Grande Stevens and Others v. Italy, no. 18640/10 et al., 4 March 2014; ECtHR (Judgment) Glantz v. Finland, no. 37394/11, 20 May 2014; ECtHR (Judgment) Österlund v. Finland, no. 53197/13, 10 February 2015; ECtHR (Judgment) Boman v. Finland, no. 41604/11, 17 February 2015; ECtHR (Judgment) Kapetanios and Others v. Greece, nos. 3453/12, 42941/12 and 9028/13, 30 April 2015. It follows that the (generally) fashionable phrase in academic writing alleging inconsistency of the ECtHR case-law has to be taken with the necessary circumspection as it may arguably relate only to the preZolotukhin practice. See further on the intricacy of case-law of the United States Supreme Court: Amar, supra n. 6.189, pp. 1807–1089. ECtHR (Judgment) Engel and Others v. the Netherlands, no. 5100/71 et al., 8 June 1976. These criteria are: (1) the legal classification of the offence under national law; (2) the nature of the offence at issue; and (3) the degree of severity of the penalty that the person concerned risks incurring. The Engel criteria principally function alternatively although, in the circumstances, their cumulative interpretation may be necessary (see, for instance, ECtHR (Judgment) Ezeh and Connors v. the United Kingdom [gc], nos. 39665/98 and 40086/98, 9 October 2003, paras. 82–86). ECtHR (Judgment) Boman v. Finland, no. 41604/11, 17 February 2015, para. 32. ECtHR (Judgment) Muslija v. Bosnia and Herzegovina, no. 32042/11, 14 January 2014, paras. 24–31. ECtHR (Judgment) Asadbeyli and Others v. Azerbaijan, no. 3653/05 et al., 11 December 2012, paras. 149–155. ECtHR (Judgment) Sergey Zolotukhin v. Russia, no. 14939/03, 10 February 2009, para. 84.

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understood as a preference for the identity of facts (idem factum), as opposed to the identity of legal designation, determining the question of idem.200 The third criterion (bis) essentially poses two questions: first, related to the existence of a “final acquittal or conviction;” and second, whether there is a duplication of the proceedings. The determination of “finality” looks at the question whether “according to the traditional expression, [the decision] has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them.”201 The term “acquittal or conviction” has still not been precisely determined although it undoubtedly represents ordinary judgments of acquittal and conviction under the relevant domestic criminal procedure,202 whereas it excludes the discontinuance of criminal proceedings by a public prosecutor.203 The existence of the duplication of proceedings, relevant for the second question of the third criterion posed above, has to be examined against the fact that Article 4 of Protocol No. 7 contains three distinct guarantees providing that no one shall be: (1) liable to be tried, (2) tried, or (3) punished for the same offence.204 Accordingly, the mere successive trial for 200 Further discussion on the matter surpasses the scope of this study. It should be noted, however, that the commonly present simplification of the criterion of idem factum would suggest that there should be identity of facts of an event as a real occurrence or physical disturbance of the ordinary course of the events in a given time and space. This however ignores the fact that the legal relevancy of those facts may be twofold: (1) they may be evidential facts – relevant for the decision-making process in reaching a conclusion on the legal questions involved in the matter, that is to say the facts which, on being ascertained, afford an important but not conclusive logical basis for inferring another fact; or (2) operative facts – forming the legal basis of the central question of a dispute on which the merits of its determination depend, that are the facts which are constitutive and dispositive in a sense of being capable to change legal relations (see further: Hohfeld, supra n. 5.49, pp. 32–35). The latter set of facts could be expressed as facts “which must be demonstrated in order to secure a conviction or institute criminal proceedings.” Any third facts, belonging to the reality of a situation, are legally speaking irrelevant. It would therefore follow that idem factum as devised by Zolotukhin, referring to the operative facts, is not the question of all facts of an event as a real occurrence in time and space but the question of essential elements (or constitutive – dispositive elements) of the legal qualification of those facts that occurred in a certain time and space. 201 ECtHR (Judgment) Sergey Zolotukhin v. Russia, no. 14939/03, 10 February 2009, para. 107. See further Explanatory report to Protocol No. 7, paras. 22 and 29. 202 Ibid., para 29. 203 ECtHR (Judgment) Marguš v. Croatia, no. 4455/10, 27 May 2014, para. 120. 204 ECtHR (Judgment) Sergey Zolotukhin v. Russia, no. 14939/03, 10 February 2009, para. 110.

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the same offence will run counter to the ne bis in idem principle, which will not necessarily be the case with the existence of concurrent sets of proceedings.205 In the achr system the ne bis in idem principle is expressly listed as one of the fair trial guarantees under Article 8. In the case of Loayza-Tamayo v. Peru the IACtHR defined its scope as a guarantee “intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause.”206 The expression “for the same cause,” determining the aspect of idem, should be taken in a broader sense favouring the position of an individual. It essentially encompasses idem factum situations or the instances “of a new trial on the same facts.”207 The bis element relates to the prohibition of a new trial where the first one ended with a non-appealable acquittal. That is the case of a determination on the merits,208 where, instead of accepting the technical meaning of the word “acquittal,” the examination should be made with regard to the question whether the competent court took cognisance of the facts, circumstances and evidence relating to the alleged acts, evaluated them, and ruled to acquit an individual.209 The question of ne bis in idem under the iccpr is not so elaborated as under the two above observed international human rights law instruments. The wording of the relevant provision of Article 14(7) iccpr is similar to the wording of Article 4 of Protocol No. 7. Accordingly, the ne bis in idem principle is limited to two sets of proceedings concerning a “criminal charge” or a “criminal offence” within the meaning of Article 14 or 15 iccpr.210 It prohibits a new trial for the offence containing “a specific element of the same matter” already adjudicated.211 However, a re-trial or punishment is prohibited only for an offence for which the individual has already been finally convicted or acquitted, which excludes instances such as the quashing of a first-instance judgment.212 Moreover, although the terms “convicted or acquitted” have not been appropriately defined,213 it is clear that they exclude instances such as an individual’s release from detention pending trial.214 205 206 207 208 209 210 211 212

ECtHR (Judgment) Kiiveri v. Finland, no. 53753/12, 10 February 2015, para. 43. IACtHR (Judgment) Loayza-Tamayo v. Peru, 17 September 1997, para. 66. IACtHR (Judgment) Mohamed v. Argentina, 23 November 2012, para. 126. IACtHR (Judgment) Berenson-Mejía v. Peru, 25 November 2004, para. 208. IACtHR (Judgment) Loayza-Tamayo v. Peru, 17 September 1997, para. 76. hrc (Decision) Gerardus Strik v. the Netherlands, no. 1001/2001, 1 November 2002, para. 7.3. hrc (Views) Terán Jijón v. Ecuador, no. 277/1988, 26 March 1992, para. 5.4. hrc (Views) Konstantin Babkin v. Russian Federation, no. 1310/2004, 3 April 2008, para. 13.5. 213 Ibid. 214 hrc (Views) Campora Schweizer v. Uruguay, no. 066/1980, 12 October 1982, para. 18.2.

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In the context of the eu law the ne bis in idem principle has been transformed from a Schengen principle securing the effective exercise of the right to freedom of movement within the eu, and a limited competition principle,215 to an eu fundamental right expressly referred to in the eu Charter. Unlike the limited geographical scope of application of ne bis in idem under the echr216 and the iccpr217 systems, where it provides for a prohibition of successive prosecutions under the jurisdiction of the same state, the ne bis in idem principle has wider transnational implications within the scope of the eu law, which can in the circumstances operate at the domestic, transnational and/or at the European level.218 As a principle operating in the Schengen space, ne bis in idem is provided under Article 54 of the Convention Implementing the Schengen Agreement.219 In general, the concept of a criminal charge for the purpose of application of ne bis in idem in the eu law can be interpreted with reference to the ECtHR Engel criteria.220 With regard to the question of idem, Article 54 cisa relates to “identity of the material acts, understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together.”221 The bis element is determined by the wide implications of the term “finally disposed of,” which essentially relates to a final “determination as to the merits of the case.”222 It thus concerns not only classical instances of 215 In the competition context the scope of ne bis in idem was limited by the cjeu judgment in the Cemet case where the following threefold condition was set: identity of the facts, unity of offender, and unity of the legal interest protected (see cjeu (Judgment) Aalborg Portland and Others v. Commission, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 [2004] ecr I-123, para. 338). 216 ECtHR (Decision) S.R. v. Sweden, no. 62806/00, 23 April 2002. 217 hrc, General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 23 August 2007 (CCPR/C/GC/32), para. 57. Note that the hrc, while referring to the limited geographical scope of the ne bis in idem principle under the iccpr, invited the Member States to continue with their efforts to prevent retrial for the same criminal offence through international conventions. 218 Vervaele, supra n. 6.185, p. 220. 219 Article 54 cisa provides: “A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” 220 Vervaele, supra n. 6.185, p. 220. See further: cjeu (Judgment) Lukasz Marcin Bonda, no. C-489/10, 5 June 2012, para. 37. 221 cjeu (Judgment) Leopold Henri Van Esbroeck, no. C-436/04, 9 March 2006, para. 36. 222 cjeu (Judgment) Case of M., no. C-398/12, 5 June 2014, para. 28.

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acquittal223 or conviction,224 but also cases of discontinuation of the proceedings by the competent prosecutor,225 a decision finding that the prosecution has become time-barred,226 or an order finding that there is no ground to refer the case to a trial.227 On the other hand, the term “finally disposed of” does not cover a decision of the prosecuting authority of a Member State declaring a case to be closed merely on the grounds that criminal proceedings had been initiated in another Member State,228 or to a decision of the police authority suspending the criminal proceedings which does not, under the relevant domestic law, finally bar further prosecution.229 In this connection it should also be noted that the term “finally” in the context of the bis element essentially refers back to the relevant national law and the question whether the decision at issue definitely bars or precludes further prosecution.230 There is also the “enforcement condition” relevant for the interpretation of the bis element which requires that, when a sentence has been imposed for an offence, “it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.” It thus also covers instances such as suspended custodial sentences,231 or the impossibility to enforce the sentence due to the statutory limitation period.232 The scope of application of ne bis in idem as a fundamental principle of eu law enshrined in Article 50 of the eu Charter, providing for a different – more traditional – wording of that principle (similar to Article 4 of Protocol No. 7)233 in comparison to the one provided under Article 54 cisa, is determined primarily by the question of the ratione materiae scope of application of the eu 223 cjeu (Judgment) Van Straaten and Others, no. C-150/05, 20 September 2006, para. 61. 224 cjeu (Judgment) Jean Leon Van Straaten v. Staat der Nederlanden, Republiek Italië, no. C-150/05, 28 September 2006, para. 56. 225 cjeu (Judgment) Gözütok and Brügge, nos. C-187/01 and C-385/01, paras. 27–30. 226 cjeu (Judgment) Gasparini and Others, no. C-467/04, 28 September 2006, para. 33. 227 cjeu (Judgment) Case of M., no. C-398/12, 5 June 2014, para. 41. 228 cjeu (Judgment) Filomeno Mario Miraglia, no. C-469/03, 10 March 2005, para. 30. 229 cjeu (Judgment) Vladimir Turanský, no. C-491/07, 22 December 2008, para. 40. 230 cjeu (Judgment) Case of M., no. C-398/12, 5 June 2014, paras. 30–36. 231 cjeu (Judgment) Jürgen Kretzinger, no. C-288/05, 18 July 2007, para. 44. 232 cjeu (Judgment) Klaus Bourquain, no. C-297/07, 11 December 2008, para. 52. 233 This provision provides: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.” It thus refers to “final acquittal or conviction” as opposed to “final disposition of a case” and contains no “enforcement condition.”

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Charter.234 The question was first addressed in the case of Åklagaren v. Hans Åkerberg Fransson where the dispute arose as to whether in a purely national context the ne bis in idem principle under Article 50 of the eu Charter should be interpreted as precluding criminal proceedings for tax evasion in the case where a tax penalty had already been imposed for the same acts. The cjeu held that, after having found that resolution of the case implied applicability of the relevant eu directives on the matter of taxation, in principle nothing under Article 50 of the Charter precluded the combination of tax and criminal penalties for the same acts. However, when the tax penalties under the Engel criteria should be classified as criminal in nature, the national authorities and courts are bound to secure the level of protection provided for by the eu Charter, by observing that the primacy, unity and effectiveness of eu law are not thereby compromised.235 The relation between Article 54 cisa and Article 50 of the eu Charter was in particular addressed in the cjeu case of Zoran Spasic, where an issue arose with regard to the question of compatibility of the “enforcement condition” under Article 54 cisa with the eu Charter. The cjeu found that the “enforcement condition” essentially constituted a limitation clause to ne bis in idem in the particular context of its application as a Schengen principle. Such limitation was allowed under Article 52 of the eu Charter in so far as it was provided for by law, if it did not run counter to the essence of the right at issue, if it pursued an objective of general interest, and if it was proportionate. Based on these criteria, the cjeu found the limitation at issue to be compatible with the eu fundamental rights as it was necessary for preventing impunity for those definitely convicted and sentenced in the eu.236 234 Under Article 51(1) of the eu Charter its ratione materiae scope of application is limited to the implementation of eu law. 235 cjeu (Judgment) Åklagaren v. Hans Åkerberg Fransson, no. C-617/10, 26 February 2013, paras. 29–37. It should be noted that in this case the cjeu also addressed the question of the duty of the national courts to observe the requirements of the echr system and the eu Charter when applying the national law. With regard to the relationship with the echr system, the cjeu emphasised that the eu law does not “govern the relations between the echr and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law.” It stressed, however, that the eu law precludes “a judicial practice which makes the obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter conditional upon that infringement being clear from the text of the Charter or the case-law relating to it” (Ibid., paras. 43–49). 236 cjeu (Judgment) Zoran Spasic, C-129/14 ppu, 27 May 2014, paras. 51–74.

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We have seen from the preceding discussion that ne bis in idem is enshrined in various instruments of international human rights law,237 and very often national constitutional discourse.238 Moreover, different authors, including Bassiouni and Chiavario as it has already been observed above, have contemplated its importance of a fundamental principle or a procedural human right guarantee against possible abuses of the function of criminal prosecution. It is therefore interesting to observe that some authors have asserted that ne bis in idem is a simple procedural rule rather than a legal principle. Such an approach was in particular advocated by Juliette Lelieur, who in her highly elaborate study on ne bis in idem in the context of eu law observed its instrumental origin related to the question of legal certainty and the credibility of the judicial system, essentially enshrined in the maxim res judicata pro veritate habetur (the judgment is held for truth).239 Her in-depth research on the matter240 further showed that irrespective of the nominal proclamation of ne bis in idem as a fundamental guarantee of criminal procedure, a predominant number of French and German authors and the national case-law on ne bis in idem, but also certain case-law of the ECtHR, principally considered ne bis in idem in the context of its instrumental res judicata value, that is to say as a “mere side-effect of the juridical prescription set by the maxim res judicata pro veritate habetur.”241 Lelieur therefore considers, drawing from Dworkin’s distinction between rules and principles,242 that in practical reasoning the protection against multiple prosecutions for the same conduct essentially operates under the principle of legal certainty rather than a simple ne bis in idem rule, which in reality functions in a rule-like all-or-nothing manner giving the prosecuting authorities only one attempt to prosecute.243 Without any ambition or need for this study to enter the debate of origins or different theoretical designations of ne bis in idem, it should be noted that the 237 See Article 4 of Protocol No. 7 to the echr; Article 8(4) achr and 14(7) iccpr; and Article 50 of the eu Charter. 238 See, for instance, Article 103(3) of the Basic Law for the Federal Republic of Germany. See further: Bassiouni, supra n. 1.4, p. 289. 239 Lelieur, supra n. 6.188, p. 200. See further: Conway, supra n. 6.190, pp. 221–224. 240 Based on her doctoral dissertation defended at the University Panthéon-Sorbonne, Paris i in 2005 under the title “La règle ne bis in idem. Du principe de l’autorité de la chose jugée au principe d’unicité d’action répressive. Étude à la lumière des droits français, allemand et européen.” 241 Lelieur, supra n. 6.188, pp. 201–202. 242 See further: Dworkin, supra n. 5.5. 243 Lelieur, supra n. 6.188, pp. 202–203.

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distinction drawn by Lelieur appears to neglect an important aspect underlying legal nature of ne bis in idem. Many legal principles, in particular those of human rights law, have an (public) instrumental dimension in their origins, which has, however, either through normative enactments, legal practice or the work of scholars, transformed into the constitutive element of a right. Remaining in the same territory, we can observe that in the case-law of the ECtHR the instrumental principle of res judicata has in civil proceedings gradually developed as a human rights principle of legal certainty, guaranteed under Article 6 § 1 echr.244 Similarly, the question of prescription of criminal prosecution, as a value of a principally instrumental nature in criminal law,245 has developed into the principle of human rights law, which can be relied upon under Article 7 echr.246 To this effect, for instance, John Vervaele has observed transposition of ne bis in idem “from a transnational Schengen principle to a transnational eu principle and a eu fundamental right;”247 and some authors have also argued that a conceptual emancipation of this principle from a predominantly public sphere, such as the conflict of jurisdiction, could enhance its dimension of a fundamental procedural safeguard.248 Moreover, in the contemporary legal discourse the res judicata pro veritate habetur principle is only one of the ranges of instrumental values underlying ne bis in idem. In this connection we could also observe the public-interest values of prevention of over-punishment, achievement of optimal deterrence of crime, avoiding the costs of multiple prosecutions, or inducing incentives for inter-structural cooperation of the prosecuting authorities.249 Any of these arguments could hardly be used to divest the ne bis in idem of its dimension of weight or importance for the protection of an individual from unfair and disproportionate interventions of the criminal justice authorities into his or her freedom or well-being. 244 See ECtHR (Judgment) Brumărescu v. Romania [gc], no. 28342/95, 28 October 1999; and an immense body of case-law developed on the basis of this judgment. 245 See, for instance: A.L. Adlestein, “Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial”, 37 William and Marry Law Review (1995), pp. 200–206; T.T. Ochoa and A.J. Wistrich, “The Puzzling Purposes of Statutes of Limitation”, 28 Pacific Law Journal (1997), pp. 453–510. 246 ECtHR (Judgment) Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96 and 33210/96, 22 June 2011, para. 146. 247 Vervaele, supra n. 6.185, pp. 219–221. 248 T. Bravo, “ne bis in idem as a Defence Right and Procedural Safeguard in the eu”, 2(4) New Journal of European Criminal Law (2011), pp. 393–401. 249 A. Poels, “Need for Transnational Non Bis in Idem Protection in International Human Rights Law”, 23(3) Netherlands Quarterly of Human Rights (2005), p. 331.

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In view of these considerations, in order to avoid any fallacy in the conceptualisation of the underlying rationale of ne bis in idem, we shall rather approach it from a purely positivistic perspective, that is to say as a right provided in the normative enactments of human rights law, which can be righteously invoked by an individual against the competing interests (and rights) endangering or running counter to its legal requirements. 2.4.2

Optimising the ne bis in idem Protection and the Right-claim to Effective Application of Criminal-law Mechanisms It was observed above that ne bis in idem has been relied upon in a number of cases adjudicated by the international human rights courts, as well as national courts, as a guarantee of protection from the abuse of process by the prosecutorial authorities through multiple prosecutions for the same unlawful acts. In the same manner the applicant in the ECtHR case of Marguš relied on this right arguing that his second prosecution for the same criminal charges of war crimes against the civilian population, after the initial discontinuation of the criminal proceedings against him by the application of amnesty, amounted to an abuse of process and thus violated his ne bis in idem right guaranteed under the echr system. However, as we have seen, the ECtHR found these factual assertions to be true but ruled against the applicant holding that in his case the protection under the ne bis in idem principle was altogether inapplicable. This was explained in the following manner: 140. The Court considers that by bringing a fresh indictment against the applicant and convicting him of war crimes against the civilian population, the Croatian authorities acted in compliance with the requirements of Articles 2 and 3 of the Convention and in a manner consistent with the requirements and recommendations of the above-mentioned international mechanisms and instruments.250 Essentially the same effect was created in the above-cited case-law of the IACtHR in Almonacid-Arellano et al. v. Chile and La Cantuta v. Peru, where the IACtHR emphasised that “the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle,” as well as in the noted case of the Croatian Constitutional Court where it set aside the protection of the ne bis in idem principle upon a constitutional complaint by the victim alleging that

250 ECtHR (Judgment) Marguš v. Croatia [gc], no. 4455/10, 27 May 2014.

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it ran counter to her constitutional rights. Vervaele observed in particular the cited case-law of the IACtHR by noting the following: [T]he ne bis in idem principle is not an absolute human right. The positive duty to investigate, prosecute and punish serious violations of human rights (that include core international crimes) can result in setting aside fraudulent res judicata in criminal matters, because of the symbolic punishment, or because of the way in which evidence was gathered during the investigation and presented in the indictment, or because of the way in which the trial court came to its verdict.251 This discussion is essentially not related to exceptions to ne bis in idem enshrined in the discourse of criminal procedure aimed at preserving the functional integrity, validity and legitimacy of the process or some other social and political public-interest connotations,252 but rather to an abrogation 251 Vervaele, supra n. 6.185, p. 214. 252 Note that such exceptions are recognised in international human rights law. They are envisaged in paragraph 2 of Article 4 of Protocol No. 7 in connection with the possibility of reopening of the proceedings in case of evidence of new or newly discovered facts or the existence of a fundamental defect in the proceedings, which could affect the outcome of the case either in favour of the person or to his or her detriment (see Explanatory report, supra n. 6.201, para. 30; and, for instance, ECtHR (Judgment) Nikitin v. Russia, no. 50178/99, 20 July 2004). It should be noted that in the Chamber Marguš judgment the ECtHR considered the application of amnesty in connection with the criminal prosecution for grave breaches of human rights to be a “fundamental defect” in the proceedings, within the meaning of paragraph 2 of Article 4 of Protocol No. 7, and thus the second prosecution for the same acts was allowed and could not have amounted to a violation of ne bis in idem (see ECtHR (Judgment) Marguš v. Croatia, no. 4455/10, 13 November 2012, para. 76). However, as already noted above, the Grand Chamber abandoned this approach and completely excluded the applicability of ne bis in idem in the case at issue. Similarly, the exception to ne bis in idem under Article 14(7) iccpr does not exclude the possibility of the resumption of a criminal trial in exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal (hrc, supra n. 6.217, para. 56). There are also various instances of exceptions to ne bis in idem provided under different procedural arrangements. Thus, for instance, in the Italian criminal procedure a reopening of the case is possible with regard to false assertions of a pentiti, whereas in the German criminal procedure it is possible in connection with the use of false evidence, commission of an offence by a judge, or a subsequent confession by an acquitted person (see Chiavario, supra n. 6.112, p. 574). In the legal system of England and Wales this concerns the question of “valid acquittal or conviction,” which will not exist when a defendant has not been acquitted or convicted by a court of competent jurisdiction, when the

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of that right by asserting another, in the circumstances competing, human right.253 We are therefore not in a position to discuss the need to set aside a final acquittal or conviction due to its substantive invalidity related to, for instance, the discovery of new facts, a subsequent confession of the defendant or reliability and accuracy of evidence adduced during the proceedings, nor can we discuss the possibilities of ignoring ne bis in idem in a transnational context due to the matters of criminal policies or national security of a state. Our interrogation from the human rights perspective can only be limited to ascertaining the existence or preservation of the ordinary arrangement of matters in criminal procedure in which the right-claim to effective application of criminal-law mechanisms is aligned with the public interest involved, in the concrete case the protection of the due process rights of the defendant. In other words, as has already been asserted above, the optimisation of the competing interests and the associated rights involved can only be of a procedural nature aimed at proceedings have been ultra vires, or when the defendant was acquitted due to a prohibited interference with justice by intimidation of a juror or a witness (Law Commission, supra n. 6.192, pp. 9–12). In international criminal law these exceptions are closely related to the question of complementarity since the ne bis in idem principle is relevant in so far as the national prosecutions did not concern the instances of shame trials; that is to say proceedings aimed at shielding the person concerned from criminal responsibility for crimes, or proceedings running counter to the requirements of independent and impartial investigations and prosecutions of international crimes (see further: L.E. Carter, “The Principle of Complementarity and the International Criminal Court: The Role of ne bis in idem”, 8(1) Santa Clara Journal of International Law (2010), pp. 193–196). In the context of the eu law, Article 55 cisa provides the following possible exceptions to the ne bis in idem principle, which a Contracting Party may adopt: (1) where the acts adjudicated by a foreign judgment took place in whole or in part in its own territory; (2) where the acts adjudicated by a foreign judgment constitute an offence against national security or other equally essential interests of that Contracting Party; and (3) where the acts adjudicated by a foreign judgment were committed by officials of that Contracting Party in violation of the duties of their office. In its “Freiburg Proposal on Concurrent Jurisdictions and the Prohibition of Multiple Prosecutions in the European Union” the Max-Planck-Institut für ausländisches und internationales Strafrecht Freiburg im Breisgau (A. Biehler, R. Kniebühler, J. Lelieur-Fischer and S. Stein (eds.), Edition Iuscrim 2003, p. 32) devised only one case of exceptions to the ne bis in idem principle related to the abusive or deficient character of the first proceeding; thus to the sham prosecutions intended to shield a person from criminal responsibility. 253 For the methodological necessity of clear identification and detachment of the human rights element from the connotations of public interest in the structure of criminal process see supra 6.1.4.

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reinstating the ordinary flow of arguments leading to a just resolution of the matter. In all the cases we have just observed, this ordinary flow of arguments was congested by manifestly erroneous or deliberately fraudulent actions of the judicial authorities favouring the position of the defendant. In any such case, irrespective of its substantive validity, the outcome of the case is simply more just for the defendant and thus the requisite harmony or symmetry of the procedural arrangement no longer holds true. To put it differently, the symmetry has been disturbed by a manifestly inappropriate action favouring the position of the defendant, simply allowing him or her to be declared winner of the contest.254 In such a state of affairs, the legitimacy of the criminal process is put to doubt as both the public interest involved and the basic human rights of the victim are in jeopardy.255 This disturbance of the relations could be observed in the figure below (Figure 6.3). In such an arrangement of matters the abrogation of ne bis in idem induced by the right-claim to effective application of criminal-law mechanisms does not function as an exception since that would imply that there is a right, under the due process clause, to an inappropriate acquittal or conviction.256 As that is evidently not the case, it follows that the public action taken in favour of the defendant has overstepped the scope of protection guaranteed by the due (A) RIGHT TO EFFECTIVE APPLICATION OF CRIMINAL-LAW MECHANISMS

PUBLIC ACTION

JUST RESOLUTION

(B) DUE PROCESS RIGHTS

Figure 6.3 Disturbed symmetry of criminal process 254 Amar, supra n. 6.189, p. 1841. 255 Lööf, supra n. 6.180, pp. 328–329. 256 Note that we could contemplate here all instances of procedural actions and possible outcomes running counter to the requirements of applicability and/or effectiveness of the right-claim to effective application of criminal-law mechanisms, which can also be, in the circumstances, a disproportionately lenient sanction.

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process right. Accordingly, as we have seen in Marguš, such an action is ultra vires and cannot fall under the protection of human rights.257 Consequently, there is only a fictitious, non-real conflict between the right-claim to effective application of criminal-law mechanisms and the due process right,258 which, in instances where the procedural mechanisms of optimisation are put in place, can only be of a provisional rather than a constitutive nature. This, however, needs to be distinguished from instances in which the favouring of the defendant’s position coincides in effect with a public action, which is not in itself intended to produce an advantage to any of the individuals implicated in the proceedings. In such a case the benefit for the party at issue is concomitant but not necessarily intended or manifestly foreseeable. An illustrative example could be the statutory prescription period, the occurrence of which ordinarily leads to a breach of the prosecutorial authorities’ duty to investigate and prosecute a human rights offence.259 Nevertheless, this does not mean that it should abrogate the established protection of the defendant’s rights when it simply collaterally occurred with the expiry of the statutory limitation period for prosecution.260 This can be observed, for instance, in the case of Albán-Cornejo et al. v. ­Ecuador, where, after having found a breach of the national authorities’ duty to effectively investigate and prosecute allegations of medical negligence with regard to the fact that the prosecution had possibly become time-barred, the IACtHR noted: On the other hand, the accused is not responsible neither of the celerity of the action of the judicial authorities in its development, nor for the lack of due diligence of the state authorities. The burden of the delay on the administration of justice cannot be imposed over the accused in 257 Approaching the matter from the purely criminal-law perspective, some authors have described this situation as continuing jeopardy, which means that due to an error in the process in favour of the defendant, the process in reality does not end but continues (and along with it the peril for the defendant) until a fair result is obtained (see Amar, supra n. 6.189, pp. 1840–1845; El Zeidy, supra n. 6.185, pp. 192–193). 258 Tsiliotis, supra n. 6.155, p. 337. 259 See, for instance, ECtHR (Judgment) Remetin v. Croatia, no. 29525/10, 11 December 2012, para. 99; ECtHR (Judgment) Mocanu and Others v. Romania [gc], nos. 10865/09, 45886/07 and 32431/08, 17 September 2014, para. 326. See further the dissenting opinion of Judge P. Pinto de Albuquerque in that case. 260 It accordingly follows that in these instances the optimisation should not occur to the detriment of the established legal relations but through the compensatory remedies at the disposal of the party whose rights have been prejudiced.

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a criminal procedure, which would inevitably represent a breach of the rights of the accused in the terms of the applicable law.261 Similarly, in the case of Association “21 December 1989” and Others v. Romania, the ECtHR, when instructing the domestic authorities under Article 46 echr to undertake an effective investigation and prosecution of those responsible for deaths during the Romanian anti-government demonstrations in December 1989, indicated the following: Accordingly, the Court considers that the respondent State must put an end to the situation identified in the present case and found by it to have been in breach of the Convention, concerning the right of the many persons affected, such as the individual applicants, to an effective investigation which is not terminated by application of the statutory limitation of criminal liability…262 Further examples include the case of Gäfgen v. Germany where the ECtHR stressed that the requirement of effective application of criminal-law mechanisms in human rights protection cannot be used so as to violate, in the concrete case, the prohibition of inhuman treatment and the right to a fair trial under Articles 3 and 6 echr respectively, guaranteed to those suspected of committing offences.263 Similarly, in the Myumyun v. Bulgaria case, in which the ECtHR identified some fundamental irregularities in the domestic legal order concerning the criminalisation of torture, it nevertheless stressed that “the national authorities cannot be expected to discharge their positive obligations under Article 3 of the Convention by acting in breach of the requirements of its Article 7, one of which is that the criminal law must not be construed extensively to an accused’s detriment.”264 2.5 Scope of the Intended Procedural Optimisation Much has been said in the above discussion concerning the inappropriate or erroneous functioning of the procedural actions in favour of the defendant and to the detriment of the requisite symmetry of the right-claim to effective

261 IACtHR (Judgment) Albán-Cornejo et al. v. Ecuador, 22 November 2007, para. 112. 262 ECtHR (Judgment) Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, 24 May 2011, para. 194 (emphasis added). 263 ECtHR (Judgment) Gäfgen v. Germany [gc], no. 22978/05, 1 June 2010, para. 177. 264 ECtHR (Judgment) Myumyun v. Bulgaria, no. 67258/13, 3 November 2015, para. 76.

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application of criminal-law mechanisms and the due process rights. The scope of protection of the former right is thereby unjustifiably encroached to the benefit of an ultra vires functioning of the latter, and a procedural mechanism of optimisation is needed for their conferment into a harmonious structure of criminal procedure. We could equally envisage an inverse process in which the due process rights are unjustifiably prejudiced by the inappropriate functioning of the right-claim to effective application of criminal-law mechanisms.265 As, by logical implication, the requisite symmetry of the process excludes primacy of any of these two rights, there is likewise a need for an optimisation of the ranges of protection to a functional balance. Once that optimisation has been achieved, the requirement for a just resolution of the matter from the perspective of the individual human rights is secured. This should imply, firstly, that the scope of protection of the two rights is clearly ascertained in the relevant legislative enactments governing criminal procedure in a particular criminal justice system. Secondly, there must be a mechanism capable of identifying which right operates ultra vires, that is to say, which right is threatening and which one needs protection in the circumstances. And thirdly, such a mechanism should be capable of resolving the existing irregularity, in other words, capable of conforming the active or threatening right to its prescribed range of protection or within its borderline, and protecting the exercise of the passive or threatened right by vindicating its range of protection.266

265 For example, in instances of unjustified criminal conviction for defamation (ECtHR (Judgment) Cumpănă and Mazăre v. Romania [gc], no. 33348/96, 17 December 2004). 266 See further: Tsiliotis, supra n. 6.155, pp. 354–355.

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Optimising Variances: Differentiation of the Human Rights Element in the Charging Process 1 Introduction In the preceding discussion on the two particular aspects of the public-based requirements related to the administration of criminal justice (prosecutorial discretion and the observance of the due process rights of defendants), relying on the methodological structure outlined in the conclusion to Chapter 5, we have essentially assigned the weight of the human rights element in the overall structure of the charging process. It was in particular observed that the overall structure of the function of criminal prosecution, as a procedural activity determining the charging process (denoted as φ), consists of two factors: the individual-based component of the activity, denoted as h(φ), and the public-based component, denoted as p(φ). The former could also be denoted as the human rights element or factor. This denomination, however, must be taken conditionally as it is not intended to suggest that the public-based factor is ignorant of the human rights agenda but simply to facilitate a structural analysis of the function of criminal prosecution by identifying the element which has developed as a legal demand of human rights law rather than a public-based consideration. In the contemporary legal discourse, influenced by the relevant human rights considerations, a proper alignment of h(φ) and p(φ) in the overall structure of the charging process is a precondition for the valid operation of the function of criminal prosecution, and consequently a decisive factor in achieving a just resolution of the criminal matter. It could be therefore said that h(φ) and p(φ) have a certain inherent weight in the charging process. We have also observed that there is no a priori conceptual divergence of h(φ) and p(φ), conformed within the general structure of φ, which would irreconcilably impede the operation of the function of criminal prosecution. This does not, however, mean that both elements of the structure will always advocate the same decision, and it is in reality very common for the influence of one factor to be, at least to an extent, in disagreement with the other. Indeed, it would be illusory to assume that the agenda of a private individual and the public officials will always be consistent. It is therefore possible that, in the given circumstances, a group or some particular considerations implied in

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_008

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one factor may overrule the considerations inferred from the other.1 The same is moreover true when the public-interest factor is further differentiated to the particular instances of the protection of the rights of the accused in criminal proceedings. In both cases, in extreme, there could be an improper and erroneous encroachment or allocation of preferences in favour of one factor within the structure, which could create an adverse effect of disturbance of the requisite symmetry. It is therefore necessary to generate, as conceived by Herling, a relative weight for h(φ) and p(φ) in the decision-making process, that is to say, to allocate their inherent weights across the considerations implied in the charging process in a particular case.2 Herling distinguishes between a simple two-way split and the situation in which more than two groups of considerations are (possibly) engaged.3 In the context of the present discussion, the former situation would correspond to a straightforward disagreement between the public interest and an individual agenda, where no other discernible considerations are in play, at least not directly, whereas the latter concerns complex variances of several inter-related interests. This will arise, for instance, when a consideration of the general interest (such as the rule of law) is inextricably related to an individual agenda,4 or where some other individual interests (such as due process rights of defendants) are implied in the public-based factor of the charging process. According to Herling, under the assumption of the existence of a decisionmaker’s power to decline to reach any particular determination, in the case of a simple two-way split the reasonable decision will be the one supported by the relatively weightier group of considerations, while in the situation of a complex disagreement a valid decision is the one which is least encumbered by dissent. Moreover, in the situation where a factor carries a substantial inherent weight, such as, for instance, in the context of a duty to investigate and prosecute serious ill-treatment, particular considerations implied in the observance of its requirements may be overridden only by a limited class of considerations of, in the circumstances, a greater or more important force.5 This framework for the assignment of relative weight, observed from the perspective of the individual-based factor in the charging process, is essentially differentiation of the human rights element within the range of solutions 1 Damaška, supra n. 2.35, p. 214. 2 Herling, supra n. 6.25, p. 600. 3 Loc. cit. 4 ECtHR (Judgment) Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [gc], no. 47848/08, 17 July 2014, para. 133. 5 Herling, supra n. 6.25, p. 600.

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in the prosecutorial decision-making. This primarily relates to the question of effectiveness of the right-claim to effective application of criminal-law mechanisms in human rights protection. It was already observed in this study that there is a range of possibilities in the prosecutorial decision-making which will be legitimately acceptable from the perspective of human rights law as long as the human rights element is assigned the necessary weight in the circumstances of a particular case. It thus follows that the validity of the overall assessment of relative weight to the human rights element must be subjected to some form of review, which would have an instrumental value for the appraisal of the application of criminal-law mechanisms in human rights protection. The review at issue should answer the question whether the calculation of the relative weight of the human rights factor has remained within the reasonable range of responses in the given circumstances, that is to say whether there have been impeding flaws, as opposed to isolated errors or omissions, in the application of criminal-law mechanisms in human rights protection.6 Herling discusses such a type of challenge as irrationality challenge aimed at ascertaining whether a purported failure in the decision-making process is gross.7 He devised, in particular, several types or varieties of legal challenge to the weighing of factors. The first type concerns the challenge of the decisionmaker’s failure to abstract the weight assigned to a factor. The second type relates to an error of law where the decision-maker fails to give substantial weight to a factor which enjoys the special protection, or where a factor has been assigned decisive weight without the necessary regard to the competing factors. The third type concerns a grossly incorrect balancing of competing factors by the decision-maker.8 Much of the above discussion concerning the calculation of the relative weight of a factor in the decision-making process discloses resemblance to a balancing exercise, which, as it was already discussed in the preceding Chapter, should be approached with the necessary caution in the context of the exercise of function of criminal prosecution. The question in this context is rather related to the search for a mechanism of review or remedy making rights effective, well-structured and adeptly conformed within the overall structure of the charging process.9 To put it simply, the solution lies in the optimisation of the 6 See supra 4.2.3. 7 Herling, supra n. 6.25, pp. 600–601. 8 Ibid., pp. 603–604. 9 See further for a discussion on the right-remedy dialectic in the articulation of law: N. Leong, “Making Rights”, 92 Boston University Law Review (2012), pp. 405–481.

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human rights element and the competing considerations within the charging process. The observed Herling’s scheme nevertheless provides valuable guidance in this assessment at least on two grounds. Firstly, it aptly demonstrates the necessity of and provides an insight into the process of making a clear distinction between an abstract or inherent weight of a factor and its relative weight in the given circumstances; and secondly, it makes it obvious that the optimisation must be carried out at two stages, i.e. at the level of initial decision-making, and through the subsequent assignment of weight to the human rights factor across the range of prosecutorial solutions and actions. This concretely means that the valid optimisation of the human rights factor in the charging process will depend on the existence of mechanisms securing a possibility of review of the relative weight assigned to the human rights factor in the particular charging process. Moreover, this would also facilitate the process of achieving the necessary balance or symmetry of the criminal process in general. These mechanisms could be denoted as the mechanisms of human rights challenge to the prosecutorial decision-making. Two such mechanisms will be conceptualised in the further discussion, which will, however, due to the structural limitations and aim of this study, be limited to a theoretical and abstract, and thus inevitably imperfect contemplation of possible solutions. 2

Two Mechanisms of Procedural Optimisation

It was argued in this study that once a human rights factor has been attached to the charging process, it has been assigned a certain inherent weight. In the decision-making process this inherent weight must be appropriately differentiated, that is to say, there must be a mechanism of securing proper assessment of its relative weight in order to ensure an overall validity of the process. In other words, by conceptualising a right-claim to effective application of criminal-­ law mechanisms we have assigned it a certain inherent weight, which must be differentiated across the range of procedural situations and actions of the charging process. Its proper differentiation in the particular circumstances of a case implies: (1) ascertaining whether there are flaws in observing its requisite range or protection; and (2) the possibility of removing such irregularities. This forms a core aspect of the above-construed procedural optimisation. On a practical level, such a procedural optimisation could be envisaged through two mechanisms of a human rights challenge to the prosecutorial decision-making: one in which the victim would be allowed to vindicate his

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or her right-claim to effective application of criminal-law mechanisms by directly engaging the mechanisms of criminal prosecution, and the other in which the victim would be able to put the competent authorities in a position to re-­examine their decisions in the light of his or her right-claim to effective application of criminal-law mechanisms in human rights protection. The former could be denoted as the private prosecution model, and the latter as the review model. The Mechanisms of Procedural Optimisation in National Criminal Justice Systems 2.1.1 The Private Prosecution Model By conceiving private prosecution as a mechanism of differentiation of the human rights factor in the discourse of criminal procedure we are essentially conferring upon the private individual an opportunity to exercise direct control over the procedural optimisation of the relevant factors. In other words, we are contemplating a mechanism which limits the prosecutorial monopoly of differentiation of the relevant factors in the charging process by breaking it through the possibility of private prosecution.10 The private prosecution thus becomes a mechanism of victim control and correction of inadequate actions of the state authorities in differentiating the human rights factor in the prosecution of human rights offences.11 This function of private prosecution must be distinguished from several other possible implications of the term which, on the one hand, converge in the sense that they imply an active participation of the victim in the proceedings,12 but at the same time conceptually significantly differ with regard to the aim and scope of such participation. There are two principal functional models of victim participation in this context. The first model, which designates the private prosecution in the narrow sense, concerns entirely private prosecution by the victim without the involvement of the public prosecutor. The second model is a substitute prosecution, or as sometimes denoted “autonomous private prosecution” model, which concerns the situation referred to in the present discussion, namely private prosecution as a mechanism of control of the state authorities’ discharge of their prosecutorial duties.13 2.1

10 Langbein, supra n. 6.32, p. 461. 11 redress and fidh, supra n. 3.296, p. 41. 12 Michel-Luviano, supra n. 1.30, p. 86. 13 Ibid., pp. 90–92. Note that this author also refers to a third model, which is, however, limited to the victims’ participatory rather than functional rights, and thus not of direct interest for this study. See further: L. Fazsi, “The Right of the Injured Parties to Represent

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The conceptual difference between the two models lies in the limited scope of the former, due to a traditionally reluctant stance of the contemporary criminal justice systems to facilitate criminal prosecutions on private charges, restricting such a possibility to the prosecution of minor offences, essentially of the degree of intentional torts.14 The aim of the state in such instances is to provide a constructive forum for the resolution of a private conflict and thus to prevent the possible state of anarchy, which could arise by the occurrence of private vengeance in seeking justice. According to Damaška this model is simply a private conflict resolution in disguise without any policy goals existing independently of that aim.15 However, owing to a particular constitutional arrangement, an expanded use of private prosecution may be seen as lacking public legitimacy and threatening constitutional arrangement of impartiality and equality of private individuals in the administration of criminal justice.16 On the other hand, in the context of substitute prosecution, the function of private prosecution designates a mechanism by which private individual overrules the public authorities agenda, i.e., a model by which the victim puts his or her grievances against the accused over the official public-interest judgment on the best course of action.17 Thereby, essentially, a private individual is directly empowered to prevent and vindicate the adverse effects on the outcome of the proceedings, which could occur in the case of an inappropriate procedural optimisation of the competing human rights and public-interest factors within the structure of the function of criminal prosecution. Themselves Instead of Being Represented by a Prosecutor in the Criminal Procedure Code of Hungary”, Curentul Juridic (2011), p. 133. 14 Note, however, that Langbein observed that at Common Law, where the possibility of private prosecution still remains only as a neglected historical residual, the public prosecutor was an historical latecomer. See further J.H. Langbein, “The Origins of Public ­Prosecution at Common Law”, 17 American Journal of Legal History (1973), p. 313. 15 Damaška, supra n. 2.35, p. 213. 16 See further: R.A. Fairfax, “Delegation of the Criminal Prosecution Function to Private Actors”, 43 University of California Davis (2009), pp. 411–456; J.E. Kennedy, “Private Financing of Criminal Prosecutions and the Differing Protections of Liberty and Equality in the Criminal Justice System”, 23 Hastings Constitutional Law Quarterly (1997), pp. 665–707; M.S. Nichols, “No One Can Serve Two Masters: Arguments Against Private Prosecutors”, 13(2) Capital Defense Journal (2001), pp. 279–305; M.E. O’Neill, “Private Vengeance and the Public Good”, 12(3) Journal of Constitutional Law (2010), pp. 659–750; P.L. Davis, “The Crime Victim’s ‘Right’ to a Criminal Prosecution: A Proposed Model Statute for the Governance of Private Criminal Prosecutions”, 38(2) DePaul Law Review (1989), pp. 329–409; A. Sidman, “Outmoded Concept of Private Prosecution”, 25(3) American University Law Review (1976), pp. 754–794. 17 Damaška, supra n. 2.35, p. 214.

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The present discussion is thus limited to the function of substitute prosecution, which will for the purpose of textual convenience be denoted as private prosecution. More specifically, this discussion does not seek to challenge the arrangement of relations in which the principal position in the prosecution of crime is reserved to the function of public prosecution. Nor is it aimed at conceiving or arguing a particular relevance or aptness of private prosecution as a model of the charging process. Rather, it looks to examine the capacity of private prosecution to differentiate the human rights factor across the range of procedural situations and actions of the charging process. This capacity will structurally depend on several factors identified in an illuminating research on the general function of private prosecution in the charging process conducted by Verónica Michel-Luviano. In her study on private criminal prosecution in Latin America she distinguishes between structural/ institutional factors and agentic factors. The former in particular concern the questions of judicial independence, institutional design of the prosecuting organ in a criminal justice system, the questions of victim participation in the proceedings and the guarantees of equality in the administration of justice. On the other hand, the agentic factors are determined by the capacity of private prosecution to improve judicial responsiveness to the occurrence of a human rights offence, and they also denote normative concerns and beliefs reflected in a legal system.18 Drawing from these conclusions we can construe a general conceptual framework determining the function of criminal prosecution in contemporary criminal justice systems as a structure consisting of three institutional and agentic criteria: (1) organisation of the function of criminal prosecution in a criminal justice system; (2) victim participation in the proceedings; and (3) the capacity of the victim to act as the competent prosecutor. On this basis we can observe the capacity of models of private or substitute prosecution existing in some European legal orders to accommodate the relevant human rights requirement for differentiation or procedural optimisation of the human rights factor in the charging process. Commentators differentiate two main variants of such models. The first could be denoted as the subsidiary prosecution model, and the second is often designated as the partie civile model.19

18 Michel-Luviano, supra n. 1.30, pp. 29–34. 19 A third model could also be identified in the Spanish legal system of “action popular,” which is specific to the extent that it allows for a popular prosecution even without the existence of a victim status of the private prosecutor (Section 125 of the Constitution).

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The concept of subsidiary prosecution, as a mechanism of victim control over the discharge of public criminal prosecution, developed in the European legal sphere in the last decades of the Austro-Hungarian monarchy20 and is still present in that form in several European countries drawing on its legal heritage,21 or at least gravitating,22 towards its legal system.23 In its pure form the model of subsidiary prosecution allows the victim, in case of a decision of the competent public prosecutor not to investigate or prosecute an offence, to take over the prosecution by bringing the matter for adjudication before the competent criminal courts. This action is independent of any ancillary civil claim for damages which the victim might pursue in the context of the same criminal proceedings or through a separate civil action. In this model, the victim as a prosecutor replaces the public prosecutor and discharges all rights and duties of the prosecution, save for those which the public prosecutor holds as a state official. A standard form of the subsidiary prosecution model exists today in the Croatian criminal justice system.24 Criminal procedure in the Croatian legal system is a legal process instituted by the competent prosecutor (nemo judex sine actore). There is no ex officio institution or conduct of the proceedings by the courts (ne eat judex ef officio).25 The function of criminal prosecution may be performed by the public prosecutor26 or the victim acting as the private 20 Damaška, supra n. 2.35, p. 200; Fazsi, supra n. 7.13, p. 134. 21 Austria (Article 72 of the Code of Criminal Procedure), Hungary (Section 53 of the Code of Criminal Procedure), Croatia (Article 55 of the Code of Criminal Procedure) and Slovenia (Article 60 of the Code of Criminal Procedure). See further on the Austrian and the Hungarian criminal system of subsidiary prosecution: Vander Beken and Kilchling, supra n. 6.32, pp. 23–24 and 102. 22 In particular, the former Yugoslav countries: Serbia (Article 52 of the Code of Criminal Procedure) and Montenegro (Article 59 of the Code of Criminal Procedure). 23 Outside this group of countries, the system of subsidiary prosecution also exists in Sweden (Chapter 20, Section 9 of the Code of Judicial Procedure) and Finland (Chapter I, Section 14 of the Criminal Procedure Act). See further on the Finnish system: M. Joutsen, R. Lahti and P. Pölönen, Criminal Justice Systems in Europe and North America: Finland (Helsinki, heuni 2001). 24 In fact, some earlier studies on the Croatian criminal justice system reported on an effective use of this avenue, where out of thirty-five subsidiary prosecutions which reached a verdict, six of them resulted in a conviction. See further: Adžović, supra n. 5.70, p. 20. 25 B. Pavišić, Komentar Zakona o kaznenom postupku (Rijeka, Dušević & Kršovnik 2011), p. 53. 26 The function of public prosecution is performed by the State Attorney’s Office of the Republic of Croatia, which is organised as an independent and autonomous public legal service governed as a system of hierarchically structured subordinate municipal and county State Attorney’s offices (Sections 2–3 of the State Attorney’s Act).

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prosecutor for a certain type of criminal offences of a lesser gravity (such as defamation or minor bodily injury), expressly enumerated in the Criminal Code. The function of public criminal prosecution is construed on the principle of legality,27 with some exceptions in which expediency may come into play.28 This means that the public prosecution must be set into motion whenever there is a reasonable suspicion that a criminal offence has been committed and there are no formal legal impediments to the prosecution. In addition, for certain offences enumerated in the Criminal Code (such as making serious threats) a special request to prosecute made by the victim is a prerequisite for a public criminal prosecution.29 In the course of the public-managed prosecution, the injured party30 may act as a victim in the proceedings if he or she so requests. The term victim, as an injured party participating in the proceedings, is broadly defined covering any person or legal entity who suffered a breach of a personal or property right as a consequence of the commission of an offence.31 There must, therefore, be a causal link between the occurrence of an offence and the prejudice suffered by the supposed victim, which must be established in each particular case.32 When the injured party assumes the function of a victim he or she has the right to participate in the proceedings and to support the public prosecution. In performing that function, the victim has the right to be legally represented and, on the basis of his or her voluntary assessment, has the right to bring an ancillary civil claim. This ancillary civil claim may be decided by the competent criminal court, which may decline to determine the matter and instruct the victim to institute a separate set of civil proceedings before the competent civil courts.33 The victim also has the right to lodge an appeal against the

27 28

Article 3 of the Code of Criminal Procedure. Such as in the case of a pentiti (Article 206e of the Code of Criminal Procedure), with regard to the offences of a lesser gravity (Articles 206c – 206d of the Code of Criminal Procedure) or offences committed by minors (Sections 71–73 of the Act on Courts for Minors) or legal entities (Section 24 of the Act on Criminal Responsibility of Legal Entities). 29 Article 2(2) of the Code of Criminal Procedure. 30 Injured party is defined as any person or legal entity suffering physical, emotional or pecuniary damage or breach of the basic rights and freedoms (Article 202(11) of the Code of Criminal Procedure). 31 Article 202(12) of the Code of Criminal Procedure. 32 Pavišić, supra n. 7.25, p. 412. 33 Article 202(12) of the Code of Criminal Procedure.

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criminal court judgment and the right to be informed of the termination of the proceedings or dismissal of charges by the public prosecutor.34 If the public prosecutor rejects a criminal complaint, he or she must inform the victim of that decision. The public prosecutor must also instruct the victim of the right to take over the prosecution as a subsidiary prosecutor by taking the necessary action before the competent court. The same must be done by the competent criminal court when discontinuing the proceedings on the basis of the public prosecutor’s dismissal of charges against the accused. The only instance in which the victim cannot take over the prosecution is when the public prosecutor decides not to prosecute on the basis of the exceptions falling under the principle of expediency.35 The procedural action that should be taken by the victim when taking over a prosecution will depend on the stage of the proceedings in which he or she replaces the public prosecutor in performing the function of criminal prosecution. The victim thereby assumes the function of the subsidiary prosecutor and independently and autonomously prosecutes the case before the competent criminal court. The function of criminal prosecution is solely in the hands of the victim who, unlike the public prosecutor, is not bound by the principle of legality of prosecution. This means that further prosecution against the accused depends on the discretion of the victim as the subsidiary prosecutor. This is an individual and personal right of the victim which cannot be transferred to another person. However, if the victim acting as a subsidiary prosecutor dies during the proceedings, his or her relatives may pursue the case further.36 By taking over the prosecution as a subsidiary prosecutor the victim assumes all rights of the public prosecutor, save for those which the public prosecutor holds as a public official. In other words, the victim assumes the procedural rights of a party in the criminal proceedings, which may be exercised before all instances of domestic jurisdiction.37 However, until the closing of the trial the public prosecutor has the right to take over the prosecution from the subsidiary prosecutor and to resume the public prosecution against the accused. In such a case the victim loses his or her position of a subsidiary prosecutor but may continue to participate in the proceedings by performing other victim participatory rights.38

34 35 36 37 38

Ibid., Article 47. Ibid., Article 55. Loc. cit. See further: Pavišić, supra n. 7.25, pp. 177 and 413. Constitutional Court, decision no. U-III-791/1997 of 14 March 2001, para. 11. Article 55 of the Code of Criminal Procedure.

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Similar to the subsidiary prosecution variant, the partie civile variant of the private prosecution model, developed from the French legal heritage,39 allows the victim, who is in a position to claim damages related to the offence prosecuted by the public prosecutor, to institute the criminal prosecution through the order of the competent court in which he or she can perform the function of the prosecutor.40 However, unlike the subsidiary prosecution variant, in the partie civile variant the public prosecutor remains responsible for the conduct of the prosecution, but once the victim has joined the proceedings the public official no longer has monopoly over that function. Thus, if the victim acts as partie civile by instituting criminal proceedings before the competent court, the public prosecutor is obliged to take over the prosecution. Nevertheless, the public prosecutor may express disagreement with the victim by advocating a different position as to the proper resolution of the matter. In any case, the decision on the manner in which the case should be disposed remains on the competent criminal court.41 The function of public prosecution in the French criminal justice system is performed by the public prosecutor (Procureur de la République)42 on the basis of the principle of expediency. As has already been discussed above, this means that the public prosecutor institutes public prosecution where three requirements have been met: there is sufficient evidence that an offence has been committed, there are no legal impediments barring criminal prosecution, and the public interest justifies public prosecution.43 The victim (partie civile) may participate in the criminal proceedings by intervention, that is to say by supporting the public prosecution instituted by the public prosecutor, or by instigation, namely the institution of the proceedings

39

40

41 42

43

See, for instance, the legal systems of France (Article 40–2 of the Code of Criminal Procedure), Belgium (Article 63 of the Code of Criminal Procedure), and Luxembourg (Article 56 of the Code of Criminal Procedure). See in particular on the Belgian system: Vander Beken and Kilchling, supra n. 6.32, p. 32. See further: J. Hodgson, “Suspects, Defendants and Victims in the French Criminal Process: The Context of Recent Reform”, 51 International and Comparative Law Quarterly (2002), pp. 792–793. See further: Y. Ma, “A Comparative View of Judicial Supervision of Prosecutorial Discretion”, 44(1) Criminal Law Bulletin (2008), pp. 3–27. The investigating magistrates in the French criminal justice system form part of a hierarchical structure under the control of the Minister of Justice (Article 5 Ordonnance n° 58–1270 du 22 décembre 1958 portant loi organique relative au statut de la magistrature). Articles 40 and 40–1 of the Code of Criminal Procedure.

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before the competent court.44 In the latter capacity the position of partie civile corresponds to the position of the subsidiary prosecutor in the systems that adhere to that variant of the private prosecution model. The partie civile may be any person or legal entity capable of making probable the actual existence of personal damage directly related to the commission of an offence.45 The underlying purpose of the partie civile institution of the proceedings is to ensure public control of the discharge of discretionary prerogatives implicit in the expediency-driven charging process. It should therefore not be confused with the concept of privatisation of the function of criminal prosecution as its primary purpose is not to pursue public prosecution by eliminating the position of the public prosecutor but to provide a mechanism by which the exercise of the discretionary prerogatives may be overweighed by a private agenda.46 There are in general two prerogatives associated with the partie civile institution of the proceedings. The first is the reparatory aspect related to the victim’s pursuit of a claim for compensation of the damage caused by the offence. The second prerogative is seen by commentators as being of a vindictive nature, although not necessarily associated with the victim’s interest to obtain conviction of the perpetrator, but rather to establish and legally acknowledge the perpetrator’s responsibility for the breach of the victim’s protected interests.47 As a rule, the victim does not need to lodge a civil claim for compensation in the course of the criminal proceedings in order to act as partie civile.48 Nevertheless, in cases of serious offences (crime) for which the conduct of an investigation is mandatory,49 the victim needs to attempt to have the public prosecution instituted by lodging a criminal complaint with the competent public prosecutor before seeking to proceed as a partie civile before the competent courts.50 In cases of serious offences, when the competent public prosecutor has decided not to prosecute or has remained passive for three months following the submission of a criminal complaint, the victim can proceed as partie civile and 44 45 46 47 48 49 50

F. Desportes and L. Lazerges-Cousquer, Traité de procédure pénale (Paris, Economica 2009), p. 821. Article 2 of the Code of Criminal Procedure. Desportes and Lazerges-Cousquer, supra n. 7.44, pp. 804–806. Ibid., pp. 807–808 and 820. Court of Cassation (Crim. 16 déc. 1980, B. n° 348 – 19 oct. 1982 B. n° 222). Article 79 of the Code of Criminal Procedure. Ibid., Article 85. This is seen as one of the preventive mechanisms from abuse of the function of criminal prosecution. See further on the preventive and repressive mechanism for the protection from abuse of the function of criminal prosecution by the partie civile: Desportes and Lazerges-Cousquer, supra n. 7.44, pp. 882–899.

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institute a criminal prosecution by lodging a complaint before the competent investigating judge. The investigating judge then communicates the complaint to the public prosecutor and, if he or she finds the victim’s request justified, orders further investigation and prosecution.51 The partie civile model differs from the subsidiary prosecution variant in that the victim does not fully substitute the public authorities in the performance of the function of prosecution but rather complements the efforts in further prosecution. In reality, however, the victim performs the prosecuting activities in the proceedings. If the investigating judge finds that there are no grounds to continue with further investigation and prosecution he or she shall discontinue the proceedings and the partie civile can challenge that decision before a three-judge panel of the competent court.52 In cases of lesser offences (delit and contravention) the partie civile may bring proceedings by seeking investigation before an investigating judge or directly engaging in prosecution before the competent court.53 The procedural requirements for instituting criminal prosecution are thus less stringent in this event given the lesser public-interest considerations involved. Overall, there is a conceptual convergence of the subsidiary prosecution and the partie civile variants of the private prosecution model in that they both confer direct control over the procedural optimisation of the relevant factors of the charging process upon the victim, who is brought into the position to functionally influence the arrangement of relevant relations in the charging process. The two comparative examples observed above show that this is of functional relevance for the legitimacy of criminal prosecution irrespective of whether a particular criminal justice system adheres to the principle of legality or expediency of the charging process since both, on a conceptual level, confer the same possibility of optimisation of the relevant factors. 2.1.2 The Review Model Unlike the private prosecution model, the review model of procedural optimisation is a mechanism of indirect control of the public authorities’ discharge of the function of criminal prosecution. In the arrangement of the review model a private individual is not in a position to directly engage the mechanisms of criminal prosecution but may bring the competent public official in a position to re-examine his or her decision not to prosecute in the light of the specific grievances pertinent to an individual-based agenda. When this 51 52 53

Articles 85 and 86 of the Code of Criminal Procedure. Ibid., Articles 177 and 186. Ibid., Article 392.

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individual-based argument follows from the human rights requirements, the review model can be seen as a particular type of regulation through which different individual or institutional factors impeding the capacity of the public prosecution service to appropriately consider various undifferentiated concepts of human rights law, such as truth and justice for victims of human rights offences, can be removed.54 The extent and scope of review of the decision not to prosecute may vary depending on whether a particular criminal justice system adheres to the principle of legality or expediency in the charging process. In the latter case, the review will generally encompass not only purely legal issues but also questions of the prosecuting policies, whereas in the context of the principle of legality the matter will be focused on the proper assessment of evidence and the existence of legal impediments to prosecution. In each case, however, the reviewing authority is vested with the power to overturn the initial decision not to prosecute and to order further investigation or prosecution.55 The control of prosecutorial decision-making in the charging process is generally conceived as internal and external control.56 Internal control is organised through the formal regulatory scheme within a particular prosecution service and consists of guidelines and policies reflecting the designed agenda in the decision-making, and providing for a system of internal oversight of compliance with the relevant regulations. External control designates the system of judicial review of the prosecutorial decision-making,57 and sometimes the questions of disciplinary or other (such as civil or criminal) responsibility of the prosecutors for their work.58 54 Bowers, supra n. 6.41, p. 1660. 55 Tak, supra n. 6.31, pp. 22–23. 56 S.A.D. Moore, “Questioning the Autonomy of Prosecutorial Charging Decisions: Recognizing the Need to Exercise Discretion – Knowing There Will Be Consequences for Crossing the Line”, 60(2) Louisiana Law Review (2000), pp. 398–400; D. Stemen and B. Frederick, “Rules, Resources, and Relationships: Contextual Constraints on Prosecutorial Decision Making”, 31(1) Quinnipiac Law Review (2013), pp. 17–54; C.W. Thomas and W.A. Fitch, “Prosecutorial Decision Making”, 13 American Criminal Law Review (1976), pp. 526–530. 57 In some jurisdictions there is also the model of citizens’ oversight of the prosecutorial discretion (the grand jury system) through the popular panels and commissions reviewing the prosecutor’s decision not to prosecute. See further for a comparative review of the American and Japanese systems: H. Fukurai, “Japan’s Prosecutorial Review Commissions: Lay Oversight of the Government’s Discretion of Prosecution”, 6 University of Pennsylvania East Asia law Review (2011), pp. 1–42; J. Vorenberg, “Decent Restraint of Prosecutorial Power”, 94(7) Harvard law Review (1981), pp. 1537–1538. 58 This aspect of the external control can be discarded in the present discussion given that it

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The judicial review of the prosecutorial decision-making is the principal variant of the review model allowing an individual to raise complaints about the prosecuting authorities’ failure to observe his or her rights and interests. When we conceive the individual-based agenda as a specific set of requirements flowing from human rights law, namely as h(φ) in the overall structure of φ, we have essentially designed a process in which the public prosecution service is in the same position as any other administrative agency adopting decisions which involve compliance with the related human rights requirements.59 Thus, through this model of control of the prosecutorial decisionmaking, the courts simply assert their function of interpretation and extension of individual rights by verifying whether a particular decision in the charging process, which may even be in compliance with the relevant internal regulations, is consistent with the human rights requirements.60 This function of judicial review can be contemplated as “human rightsbased challenges” in which the courts are empowered to verify whether the prosecution administration has properly assigned the human rights factor across the range of procedural situations and actions.61 When observed from this perspective the principal objections to the judicial review model, i.e., that it may undermine the separation of powers or,62 due to a lack of institutional competence of judges to review the prosecutorial discretion, undermine the functional validity of the process,63 appear misplaced. On the contrary, the involvement of the courts in the assessment of the validity of differentiation of the human rights factor in the charging process appears as the most appropriate solution. The judicial review of “human rights based challenges” is an established practice of the United Kingdom courts, which may be seen as a prime example of a proper domestication of the relevant human rights standards in the context of the exercise of the function of criminal prosecution. In general, the aims at the control of prosecutorial conduct rather than the differentiation of the human rights agenda in the structure of the function of criminal prosecution (ECtHR (Judgment) Remetin v. Croatia, no. 29525/10, 11 December 2012, paras. 73–74). 59 Moore, supra n. 7.56, p. 400. 60 Y. Allard-Tremblay, “Proceduralism, Judicial Review and the Refusal of Royal Assent”, 33(2) Oxford Journal of Legal Studies (2013), p. 398. 61 P. von Berg, “The Crown Prosecution Service”, in P. von Berg (ed.), Criminal Judicial Review: A Practitioner’s Guide to Judicial Review in the Criminal Justice System and Related Areas (Oxford, Hart Publishing 2014), p. 257. 62 S. Becker, “Judicial Scrutiny of Prosecutorial Discretion in the Decision Not To File A Complaint”, 71 Marquette Law Review (1988), p. 753. 63 Bay, supra n. 6.64, p. 552.

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involvement of the courts in the process of prosecutorial decision-making is envisaged on three grounds: (1) where the public prosecution service failed to act in accordance with the established policy; (2) where the policy itself is unlawful; and (3) where the decision not to prosecute is perverse, that is to say such which no reasonable prosecutor could have made.64 The position with regard to the “human rights based challenges” was in particular developed in R v dpp, ex parte Manning, where the complainants relied on the echr case-law in arguing their case against a prosecutor’s decision to discontinue the investigation and prosecution of a suspicious death in custody. In responding to these arguments, Lord Bingham stressed: Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given.65 Relying on the purpose of judicial review, in R (B) v dpp, concerning the discontinuation of a criminal prosecution for an assault on the grounds of the lack of victim’s reliability as a witness due to his mental condition, Lord Toulson further contemplated on the scope and nature of judicial review, particularly in the context of the echr. He stressed in particular that in some instances a judicial review of a decision not to prosecute might avoid a violation of the echr. In the case at issue, the failure of the prosecuting authorities to respond appropriately to an act of violence by a private party against the victim led to a finding of a violation of Article 3 echr.66 Similarly, in R (Waxman) v Crown Prosecution Service, the decision to discontinue further prosecution of a case of harassment was found to be contrary to the State’s duty to maintain the system 64 65 66

Von Berg, supra n. 7.61, p. 255. R v dpp, ex parte Manning [2000] ewhc 562 (qb), para. 33. R (B) v dpp [2009] ewhc 106 (Admin), paras. 64–71.

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of affording protection against the acts of violence by private individuals, as required under Article 8 echr.67 Nevertheless, the model of a judicial review of prosecutorial decision-­ making in the legal system of England and Wales is in reality a mixed form of judicial and departmental review. It was construed in R v Killick in the following manner: [I]t has for some time been established that there is a right by an interested person to seek judicial review of the decision not to prosecute (see R v dpp ex p C [1995] 1 Cr App 136); it would therefore be disproportionate for a public authority not to have a system of review without recourse to court proceedings… [I]t is clear that in considering whether to prosecute the prosecutor has to take into account the interests of the State, the defendant and the victim – the three interests in a criminal proceeding as identified for example by Lord Woolf cj in R v B [2003] 2 Cr App R 197 at paragraph 27. As a decision not to prosecute is in reality a final decision for a victim, there must be a right to seek a review of such a decision, particularly as the police have such a right under the charging guidance.68 Based on these findings, the Crown Prosecution Service in 2013 adopted the Code of Practice for Victims of Crime in which it envisaged the possibility of departmental review of the decision not to prosecute, and this, on the basis of a subsequent practice of the domestic courts, became a mandatory prerequisite for instituting a further judicial review.69 A mixed form of judicial and departmental control of prosecutorial decision-­making has traditionally been present in the German criminal justice system.70 The relevant statutory procedure of review essentially concerns the enforcement of a public criminal action (Klageerzwingungsverfahren) through the involvement of the competent courts reviewing the prosecutorial decision not to prosecute. Thereby, the German courts allow an individual to enforce the principle of legality of criminal prosecution, enshrined in Section 152(2) of the Code of Criminal Procedure, and to secure the requisite consistency of the charging practices in compliance with the criminal courts’ case-law. At the same time, under these conceptual premises, the public prosecution service maintains its autonomy in the administration of criminal justice given that 67 R (Waxman) v Crown Prosecution Service [2012] ewhc 133 (Admin). 68 R v Killick [2011] ewca Crim 1608, para. 48. 69 L v dpp [2013] ewhc 1752. 70 Langbein, supra n. 6.32, pp. 463–465.

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its compliance with the relevant legal requirements is involved, rather than a structural and organisational independence.71 When the public prosecutor decides not to prosecute, he or she is obliged to notify the complainant and provide the relevant reasoning for such a decision. The purpose of justifying the decision not to prosecute in a written document is to secure the possibility of a meaningful control of the compliance with the principle of legality in the charging process.72 Moreover, the duty to provide reasons is often seen as an expression of the respect and recognition of the victims and an essential element in securing their effective access to justice.73 If the complainant is the victim, the public prosecutor is obliged to inform him or her of the possibility of further hierarchical challenging of the nonprosecution decision.74 The hierarchical or departmental review of the decision not to prosecute is performed by the prosecutor’s office superior to the one which has adopted the decision. This remedy may be used only by the victim and not by other complainants. If the higher prosecutor’s office dismisses the victim’s complaint, the victim may seek further judicial review of the decision not to prosecute. In his or her application, the victim must indicate the relevant facts and evidence supporting the arguments against the decision to discontinue the criminal proceedings. When availing himself or herself of this remedy the victim must be legally represented. The judicial review of the decision not to prosecute is performed by the High Regional Court, which is a solution seeking to avoid having the court competent to decide on the merits of the charges reviewing the decision not to prosecute.75 The possibility of a judicial review is excluded in a limited number of cases. It is naturally excluded in cases concerning the criminal offences prosecuted by a private action (Section 172(2) of the Code of Criminal Procedure); in cases of minor offences where the decision to dispense with the prosecution is based on the principle of expediency (Sections 153(1), 153a(1) and 153b(1) of the Code of Criminal Procedure), including cases where an insignificant penalty may be expected in case of a prosecution (Section 154(1) of the Code of Criminal

71

V. Krey, German Criminal Procedure Law, Volume 1 (Stuttgart, W. Kohlhammer Publishing Company 2009), pp. 69–72. 72 Damaška, supra n. 6.30, p. 132. 73 Article 6(2) and (3) of the Victims Directive, Guidance document, supra n. 3.558, pp. 18–19. 74 Section 171 of the Code of Criminal Procedure. 75 Section 172 of the Code of Criminal Procedure. See further: C. Roxin and B. Schünemann, Strafverfahrensrecht (Munich, C.H. Beck 2009), p. 302.

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Procedure); in the specific cases concerning the offences with an extraterritorial element (Sections 153c of the Code of Criminal Procedure) or specific offences committed by the victim of coercion or extortion (Section 154c of the Code of Criminal Procedure); and in cases of expulsion or extradition of the perpetrator (Section 154b of the Code of Criminal Procedure).76 Upon the victim’s request for a review of the decision not to prosecute, the competent court may take the necessary actions to investigate the grounds for the discontinuation of the prosecution and the relevance of the victim’s arguments challenging that decision. It may also invite the suspect to provide comments on the victim’s request. On the basis of its findings the competent court may dismiss the victim’s complaint if there are no sufficient grounds for a prosecution. It must notify the victim, the prosecutor and the suspect of its decision. In this case, however, further prosecution is not barred in case of new facts or evidence,77 nor is the victim prevented from participating in the proceedings as an accessory prosecutor under the conditions provided for by the law.78 Conversely, if the competent court finds the victim’s arguments well-­ founded, and after it has heard the suspect, it shall order the public prosecutor to pursue the public criminal prosecution.79 However, this is the limit of the courts’ involvement in the prosecutorial autonomy in the charging process given that, for instance, the public prosecutor remains free to plead for an acquittal of the accused in the later course of the proceedings.80 If the competent court finds it necessary, it may also condition the institution of the criminal prosecution against the suspect by the victim’s obligation to provide security for the costs and expenses of the proceedings.81 In addition to the judicial-departmental review existing in the noted criminal justice systems, a further variant of the review model which exists in some European legal arrangements is only departmental review of the decision not to prosecute. For instance, in the Norwegian criminal justice system a decision not to prosecute may be challenged only before the immediately superior prosecuting authority but not further before the courts. Moreover, once the decision not to prosecute has been adopted by the Director General of Public Prosecutions, such decision is not susceptible to a review by any other 76 77 78 79 80 81

Section 172(2) of the Code of Criminal Procedure. Ibid., Section 174. Ibid., Section 395. Ibid., Section 175 of the Code of Criminal Procedure. Roxin and Schünemann, supra n. 7.75, p. 303. Section 176 of the Code of Criminal Procedure.

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domestic authority.82 Similarly, in the criminal justice system of Bosnia and Herzegovina, in case of a decision of the competent prosecutor not to open an investigation, the victim and other complainants may seek only a departmental review without the involvement of the courts.83 This variant of review, limited only to a departmental control, arguably complies with probably the most important functional check of discretionary action given that the superior control over the decisions of the subordinates is often perceived as the most common and normal course of supervision of the administrative agencies.84 Nevertheless, in view of the complexity of the structure of the function of criminal prosecution in contemporary legal discourse, such a solution, as we will see in the analysis of international material, may be seen as falling short of the requirement for a sensible solution in achieving the adequate procedural optimisation of the competing factors. The divergences in the variants of the review model observed above are arguably adduced by the particularities of the charging process in a given criminal justice system. Nevertheless, it suffices to note at this point that they all confer upon an individual a claim, valid under the domestic criminal justice legislation, capable of engaging the prosecuting authorities in the performative and propositional claiming of revisiting their prosecutorial decision-making. There is, therefore, as conceived by the British courts in R v Killick, a right by an interested person to seek a review of the decision not to prosecute which contemplates the overall concept of the right-claim to effective application of criminal-law mechanisms in human rights protection. The Two Mechanisms of Procedural Optimisation in International Materials The two mechanism of procedural optimisation, i.e. the private prosecution model and the review model, form part of normative solutions enunciated in the international documents seeking to conceive the possibility of some form of victim control over the public authorities’ discharge of the function of criminal prosecution. Such control was, for instance, envisaged under Principle 19 of the Principles on Impunity as a mechanism of direct involvement of the victims in the charging process85 Moreover, as already observed in this study,

2.2.

82 83 84

Section 59a of the Code of Criminal Procedure. Article 216(4) of the Code of Criminal Procedure. K.C. Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge, Louisiana State University Press 1969), p. 143. 85 See supra 3.1.1.6.

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the necessity of such a control has been also read into the provision of Article 13 cat.86 The first concrete attempt at conceiving the possibility of procedural optimisation of the victim’s position in criminal proceedings with regard to the function of criminal prosecution was constructed under Rec(2000)19.87 This document, in its relevant part, provides as follows: Interested parties of recognised or identifiable status, in particular victims, should be able to challenge decisions of public prosecutors not to prosecute; such a challenge may be made, where appropriate after an ­hierarchical review, either by way of judicial review, or by authorising parties to engage private prosecution.88 The mechanisms conceived in this provision form part of the general duties of the public prosecutors towards individuals. These individuals in particular include: suspects, witnesses and victims of crime. We could thus contemplate at least three such public – private individual relationships, i.e. those between the public prosecutor and each of the mentioned persons. All these limbs of the relationship between the private individual and the competent public office converge in the sense that they are: (1) predetermined by the requirements of discharge of the prosecutorial duties fairly, impartially and objectively, (2) by securing the respect for human rights guaranteed, and (3) by observing the requirement of effectiveness of the system.89 Rec(2000)19 also makes provision for the necessity of due consideration for the victim position, in which the possibility of victim control over the discharge of function of public prosecution plays one of the central aspects of the functional victim rights. Rec(2000)19 clearly recognises that the exercise of prosecutorial discretion, including the application of alterative resolution of criminal disputes, may cause frictions in the balance of rights and legitimate interests of the victim and the perpetrator in the context of criminal procedure. It thus constructs the mechanisms of procedural optimisation as a form 86 See supra 3.2.2.2.1. 87 It should be noted, however, that Rec(85)11 also referred to the necessity to provide an opportunity for the victim to have the decision not to prosecute reviewed through the review mechanisms or private prosecution (paragraph 7). Moreover, the Guidelines on impunity also refer to the necessity of securing the possibility of screening and challenging of the prosecutorial decisions through the judicial process (Section V.5). 88 Paragraph 34 Rec(2000)19. 89 Paragraph 24 Rec(2000)19.

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of checks and balances aimed at preventing distortion of the main objectives of criminal prosecution.90 Rec(2000)19 extends the scope of persons who should be able to avail themselves of the mechanisms of procedural optimisation to “interested parties of recognised or identifiable status.” It thereby seeks to cover not only victims of crime but also others who have legal interest in the democratic oversight of the performance of the function of public prosecution, such as the person who has reported the facts of a case to a judicial authority.91 By conceiving the two mechanisms of procedural optimisation, Rec(2000)19 attempts to limit the scope of supervision over the discharge of the function of public prosecution to the extent which would not interfere with the requirement of effectiveness of the proceedings, but also to avert possible anomalies which could occur by the sole existence of a hierarchical review of the decision not to prosecute. This in particular concerns the problem of internal supervision of a lower prosecuting authority by the higher one, which, in the circumstances, might have given the order for the discontinuation of investigation or prosecution.92 Rec(2000)19 therefore seeks to overcome the doubts surrounding the model of internal hierarchical or departmental review by introducing the possibility of a judicial review of the decision not to prosecute, or engaging the mechanisms of private prosecution. The latter could be subjected to a prior authorisation, which may be general or given on a case-by-case basis. In any case, Rec(2000)19 makes no preference to any of the two models.93 The second document constructing a mechanism of the procedural optimisation is the Victims Directive. In its relevant part it reads: Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.94 More specifically, the purpose of this mechanism is to secure the possibility for a victim to verify the validity of the procedural optimisation both with regard 90

91 92 93 94

coe, Committee of Ministers Explanatory Memorandum: Recommendation Rec(2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system, 6 October 2000, p. 33. Loc. cit. Loc. cit. Loc. cit. Article 11 of the Victims Directive.

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to the public authorities’ compliance with the relevant procedural rules, and their decision to terminate the criminal prosecution. It concerns the possibility of a review of the discontinuation of prosecution both on formal and substantive grounds, including the reliance on the principle of expediency.95 Unlike Rec(2000)19, which recognises a broad scope of beneficiaries of the mechanisms of optimisation, the Victims Directive provides for a possibility of review of the decision not to prosecute only at the request of the victim. Moreover, it concerns only the victim who has a recognised status in the proceedings in accordance with the relevant domestic law. Nevertheless, in cases of serious crime the victim should have a possibility of review of the decision not to prosecute irrespective of the question of formal recognition of the victim status in the proceedings. The meaning of serious crime is an undifferentiated concept but may be interpreted in accordance with the existing eu criminal law legislation or international criminal justice standards.96 The Victims Directive allows the domestic authority a wide margin in implementing its requirements of the procedural optimisation. Thus, it envisages the possibility of a review of the decision terminating the proceedings by the prosecutors, investigating judges or other law enforcement officials, irrespective of whether the charges have been withdrawn or proceedings discontinued. However, it does not provide for a possibility of review of the decisions taken by the competent criminal courts. Moreover, it excludes the possibility of a review of the decisions resulting in out-of-court settlements or some special procedures, such as those against high state functionaries.97 According to the Victims Directive the review should be carried out by a person or authority different to the one which made the original decision. The only exception is the highest prosecuting authority, which would be able to carry out a review of its decisions. However, it should not be done by the same official who adopted the decision. The Victims Directive, unlike Rec(2000)19, does not envisage private prosecution as a model of procedural optimisation.98 2.3 The Mechanisms of Procedural Optimisation in the ECtHR Case-law The optimisation of the human rights element in the charging process has a dual function in the ECtHR case-law. On the one hand, it represents an element 95 96 97 98

Recitals 43 and 44 of the Victims Directive; Guidance Document, supra n. 3.558, p. 30. Article 11(2) of the Victims Directive; Guidance Document, supra n. 3.558, p. 30. Recitals 43–45 and Article 11(5) of the Victims Directive; Guidance Document, supra n. 3.558, p. 30. Recital 43 and Article 11(4) of the Victims Directive; Guidance Document, supra n. 3.558, pp. 30–31.

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in the assessment of adequacy of victim participation in the proceedings, and consequently of the effectiveness of the prosecuting authorities’ discharge of their procedural obligation.99 On the other hand, the existence of procedural mechanisms of optimisation, as instruments of rectification of omissions in the charging process, provides a guarantee of an adequate discharge of the procedural obligation in general. In the first case, it is an aspect directly implied in the structure of the right-claim to effective application of criminal-law mechanisms, whereas in the latter case it bears significance of a remedial measure securing an overall effectiveness of the state authorities’ discharge of their procedural obligation. These two functions of the mechanisms of procedural optimisation can be observed in the Mustafa Tunç and Fecire Tunç v. Turkey case-law. In that case the ECtHR reiterated that an impossibility of the victims to effectively challenge the decisions concerning the investigation would undermine the requirement of effective victim participation implied in the structure of the procedural obligation, and would thus in principle lead to a violation of the echr.100 At the same time, when discussing the operation of the domestic mechanisms of judicial review, the ECtHR stressed that while the existence of such a mechanism in itself was not a requirement under the echr, the intervention of the court in the proceedings might enable the independence of the investigation (which was in issue in that case) to be guaranteed as a whole.101 However, as it was made clear in Armani Da Silva v. the United Kingdom, the ECtHR has never construed or imposed a particular model of the procedural optimisation of the human rights factor in the charging process under the echr.102 Indeed, from the perspective of the general policy of international human rights supervision, it would be difficult to single out a particular model given the variety of European prosecution systems and divergent procedural rules amongst the states.103 Accordingly, although a particular model may provide for stronger guarantees in meeting the requisite human rights requirements, as a rule it is not for the ECtHR to “micro-manage the functioning of,

99 See supra 4.2.3.4. 100 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, paras. 210–211. 101 Ibid., paras. 232–234. 102 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 259. 103 ECtHR (Judgment) Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, para. 208.

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and procedures applied in, criminal investigative and justice systems in Contracting States which may well vary in their approach and policies.”104 In this connection it should be noted that the above-observed differentiation of functions of the mechanisms of procedural optimisation is methodologically of a secondary importance for the present discussion. Indeed, the preceding discussion on the operation of the two mechanisms of procedural optimisation in the national criminal justice systems and their conceptualisation in international materials suggests that it would be artificial to insist on any such differentiation of functions. In other words, the two mechanisms of procedural optimisation must function under certain regularity following the pertinent procedural arrangements with the consequential benefit for a variety of possible functions in human rights law. Thus, in case of an effectively operating domestic system of judicial review of the prosecutorial decision-making or an effective system of subsidiary prosecution, the state would expectedly secure the requisite aspect of effective victim participation and, at the same time, rectification of possible omissions in the charging process. This logically-induced regularity can be observed in the manner in which the two mechanisms of procedural optimisation, the private prosecution model and the review model, operate in the context of the ECtHR case-law. 2.3.1 The Private Prosecution Model in the ECtHR Case-law The first case in which the model of private or subsidiary prosecution was examined before the echr institutions related to the question of its relevance as an effective domestic remedy for a complaint of police ill-treatment under Article 3 echr. In the case of J.S.H. v. Austria before the EComHR, the Austrian Government contended that the applicant, who, following dismissal of his criminal complaint by the public prosecutor, failed to pursue his allegations of police ill-treatment further as a subsidiary prosecutor, had thus failed to avail himself of the effective domestic remedies for his echr complaints. The EComHR, without elaborating on the matter in detail, accepted this argument and declared the applicant’s complaint inadmissible for non-exhaustion of domestic remedies.105 This approach was followed by the ECtHR in the case of Kačinari v. Croatia in which the applicant did not take over the criminal prosecution from the public prosecutor after the latter had dismissed the charges against his assailant, nor did he lodge an appeal against the decision 104 ECtHR (Decision) Gürtekin and Others v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, 11 March 2014, para. 28; ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, paras. 232. 105 EComHR (Decision) J.S.H. v. Austria, no. 4340/69, 2 February 1971.

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terminating the proceedings before the competent court.106 In similar circumstances, that approach was also followed in Baranyai v. Hungary.107 However, in its subsequent case-law on the matter the ECtHR departed from this approach holding, as noted in the previous discussion, that an injured party is not obliged to take over the prosecution as a private prosecutor,108 but if he or she has availed himself or herself of that possibility the ECtHR must examine the effectiveness and the manner in which the relevant criminal-law mechanisms were thereby implemented.109 Consequently, for instance, in case of using the avenue or private or subsidiary prosecution after the dismissal of charges by the public prosecutor and awaiting the final determination of the matter, the private prosecutor cannot be considered to have failed to comply with the relevant six-month time-limit for bringing a complaint before the ECtHR.110 It follows that conceptually, from the perspective of the right-claim to effective application of criminal-law mechanisms in human rights protection, the existence of private or subsidiary prosecution is a privilege for an individual having an arguable claim of a criminal infringement of his or her human rights. In righteously demanding that the state authorities discharge their duty to investigate and prosecute a human rights offence, the individual has no duty to institute private or subsidiary prosecution nor does he have a duty not to avail himself or herself of that possibility. Accordingly, there is no correlative legal duty on the part of the state authorities to entertain his or her request for private or subsidiary prosecution. There is, therefore, only a remote connection between the existence of a possibility of private or subsidiary prosecution and the two ends of the procedural optimisation envisaged in the ECtHR case-law (the requirement of effective victim participation and securing the overall effectiveness of the proceedings). This connection will be established in two instances: (1) in cases of offences which could be effectively prosecuted by a private action; and (2) in 106 ECtHR (Decision) Kačinari v. Croatia, no. 61059/08, 25 March 2010. 107 ECtHR (Decision) Baranyai v. Hungary, no. 1503/08, 10 May 2011. 108 See, for instance, ECtHR (Judgment) Gubacsi v. Hungary, no. 44686/07, 28 June 2011, para. 32; ECtHR (Judgment) Borbála Kiss v. Hungary, no. 59214/11, 26 June 2012, para. 26; ECtHR (Judgment) R.B. v. Hungary, no. 64602/12, 12 April 2016, paras. 61–65. 109 Accordingly, for instance, in the case of Horváth and Vadászi v. Hungary, the ECtHR declared the applicants’ complaint inadmissible for non-exhaustion of domestic remedies due to the fact that in a motion instituting a private prosecution, they had failed to raise their echr complaints (see ECtHR (Decision) Horváth and Vadászi v. Hungary, no. 2351/06, 9 November 2010). 110 See further for a detailed discussion on the matter: supra 4.2.3.1.4.

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cases where the victim has availed himself or herself of the possibility of private or subsidiary prosecution. The first category of cases concerns instances of human rights offences of a lesser gravity and committed by private parties, such as smaller physical attacks endangering one’s physical integrity under Article 8 echr, in respect of which the ECtHR has stressed as follows: The acts of violence such as those alleged by the applicant require the States to adopt adequate positive measures in the sphere of criminallaw protection. Where attacks on one’s physical integrity come from a private individual, the Convention does not necessarily require Stateassisted prosecution against the attacker in order to secure the applicant’s Convention rights … Thus, in such instances, it is conceivable under the ­Convention that the domestic law afford the applicant a possibility to pursue the prosecution of his attacker, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor …111 Nevertheless, it must always be assessed whether in the particular circumstances of a case the possibility of private prosecution could lead to the identification and punishment of those responsible. For instance, in Abdu v. Bulgaria the ECtHR observed that an otherwise effective avenue of private prosecution for an act of violence was not able to address the discriminatory motive of a racist attack against the victim and thus could not satisfy the authorities’ procedural obligation under the echr.112 The second category of cases are instances in which the private or subsidiary prosecution is a mechanism of remedying the impugned ineffectiveness of the official investigation and prosecution which, as noted above, comes into play only if the injured party has availed himself or herself of that opportunity. Nevertheless, this cannot substitute the duty of the public prosecutor to effectively discharge his or her investigative and prosecutorial duties.113 There may, therefore, be instances in which the initial failures in the official investigation could not be remedied through the subsequent private prosecution by the victim.114

111 ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, para. 95. 112 ECtHR (Judgment) Abdu v. Bulgaria, no. 26827/08, 11 March 2014, para. 36. 113 ECtHR (Judgment) Andonovski v. the Former Yugoslav Republic of Macedonia, no. 24312/10, 23 July 2015, para. 90. 114 ECtHR (Judgment) Butolen v. Slovenia, no. 41356/08, 26 April 2012, paras. 76–77.

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The two enunciated categories of cases converge in the sense that that private and public prosecution essentially pursue the same aim of determining the potential criminal liability of the perpetrator.115 It thus follows that, irrespective of whether the prosecution remains in the hands of the domestic authorities or the private individual, the requirements of effectiveness of the procedural obligation are the same.116 The only difference lies in the state authority capable of securing the compliance with the human rights requirements. In the case of public prosecution, the criminal justice apparatus as a whole bears responsibility for a proper differentiation of the human rights factor, and in the instances of private prosecution that responsibility is primarily on the competent courts. In reality the question of effectiveness of private prosecution relates to the adequacy of judicial response to an attempt by a private individual to elucidate the circumstances of a human rights offence committed to his or her detriment and to bring those responsible to justice. Any substantial inadequacy of the system capable of undermining these efforts would lead to a violation of the state’s procedural obligation under the echr. Thus, for instance, in the case of Bajić v. Croatia the inordinate length of judicial proceedings concerning the private prosecution for medical negligence, and the impossibility for the applicant to obtain an independent and impartial medical expert report, led to a finding of a violation of the state’s procedural obligation under Article 2 echr.117 Furthermore, in the Remetin case, a hasty dismissal of charges by the public prosecutor and the subsequent taking over of the prosecution from the applicant who had meanwhile acted as a subsidiary prosecutor eventually brought about a prescription of the proceedings. This was further accentuated by the fact that the applicant, while pursuing the matter as a subsidiary prosecutor, was unable to obtain representation by a l­egal aid lawyer.118 Similarly, in M.S. v. Croatia, the procedural failures in connection with the applicant’s subsidiary prosecution for an act of violence under Article 8 echr related to the inexistence of domestic procedures regulating possible conflicts of interest between the subsidiary prosecutor, who wished to continue with the prosecution, and her legal guardian, who did not expressly consent to the continuation of the proceedings.119

115 116 117 118 119

ECtHR (Judgment) Y v. Latvia, no. 61183/08, 21 October 2014, para. 38. ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, para. 96. ECtHR (Judgment) Bajić v. Croatia, no. 41108/10, 13 November 2012, paras. 91–108. ECtHR (Judgment) Remetin v. Croatia, no. 29525/10, 11 December 2012, paras. 98–108. ECtHR (Judgment) M.S. v. Croatia, no. 36337/10, 25 April 2013, paras. 80–81.

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The issue concerning the lack of legal representation also arose in Sandra Janković v. Croatia in which the domestic courts failed to appreciate that fact when examining the applicant’s compliance with the procedural requirements for pursuing a criminal case for an act of private violence under Article  8 echr.120 Likewise, in Starčević v. Croatia, concerning subsidiary prosecution for a death caused in a road accident, the ECtHR found a violation of the procedural obligation under Article 2 echr in connection with a failure of the competent domestic court to observe its competence and the procedural requirements for the conduct of the proceedings, which eventually, after more than eight years, resulted in the discontinuation of the proceedings on procedural grounds.121 Moreover, the lack of diligence in complying with the requirement of promptness and reasonable expedition of the proceedings upon the private prosecution was found to be in violation of the state’s procedural obligation. This was the case, for instance, in Mladenović v. Serbia122 and Beganović v. Croatia, in which the prosecution eventually became time-barred,123 just as in Valiulienė v. Lithuania124 and Turan Cakir v. Belgium, in which the lack of diligence related to the impossibility for the applicant to obtain a timely examination of his complaints by the competent court.125 On the other hand, in the case of Otašević v. Serbia, upon the applicant’s taking over of the prosecution from the public prosecutor and pursuing the charges of police ill-treatment in the competent courts, the latter duly secured his effective participation in the proceedings by questioning all witnesses and diligently conducting all other requisite procedural measures. This, therefore, led to a finding of no violation of the procedural aspect of Article 3 echr.126 The same conclusion was reached in Đekić and Others v. Serbia in which the ECtHR considered it relevant to examine whether the subsequent criminal proceedings instituted by the applicant as a subsidiary prosecutor remedied the deficiencies in the investigation conducted by the public prosecutor. Having found this to be the case, the ECtHR found no violation of the procedural limb of Article 3 echr.127 120 121 122 123 124 125 126 127

ECtHR (Judgment) Sandra Janković v. Croatia, no. 38478/05, 5 March 2009, paras. 52–59. ECtHR (Judgment) Starčević v. Croatia, no. 80909/12, 13 November 2014, paras. 65–69. ECtHR (Judgment) Mladenović v. Serbia, no. 1099/08, 22 May 2012, para. 54. ECtHR (Judgment) Beganović v. Croatia, no. 46423/06, 25 June 2009, para. 84. ECtHR (Judgment) Valiulienė v. Lithuania, no. 33234/07, 26 March 2013, paras. 83–85. ECtHR (Judgment) Turan Cakir v. Belgium, no. 44256/06, 10 March 2009, para. 69. ECtHR (Judgment) Otašević v. Serbia, no. 32198/07, 5 February 2013, paras. 34–37. ECtHR (Judgment) Đekić and Others v. Serbia, no. 32277/07, 29 April 2014, paras. 37–39.

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Likewise, in Zemzami and Barraux v. France, where the domestic authorities took all necessary measures to investigate a suspicious death in custody upon the institution of the proceedings by partie civile, the ECtHR found that the state duly complied with its procedural obligation under Article 2 echr.128 It reached the same conclusion in Alboreo v. France, concerning alleged ill-­ treatment in the detention context under Article 3 echr.129 Moreover, the ECtHR came to the same conclusion in Trévalec v. Belgium in which an investigating judge duly entertained the relevant request for the taking of further evidence by the injured party,130 and in Caloc v. France where the complaints of a partie civile before a panel of judges produced the effect of adequate investigation into his specific arguments.131 In line with the latter case-law, in Petrović v. Serbia, concerning suspicious death in police custody, the ECtHR examined the functioning of the subsidiary prosecution model in the Serbian criminal justice system from the perspective of its function of a mechanism of procedural optimisation following the dismissal of charges by the public prosecutor, as envisaged under Rec(2000)19. In this context, the ECtHR set out the aim of its inquiry by noting that it must take “into account and examine whether the review in question could have rectified the shortcomings in the prosecutor’s investigation and met certain requirements under the procedural limb of Article 2.” Having found this not to be the case due to the terse and unconvincing findings of the competent courts concerning the applicant’s arguments and allegations, the ECtHR found a violation of the procedural aspect of Article 2 echr.132 Similarly, in Réti and Fizli v. Hungary the ECtHR found that the initial failures in the official investigation could not have been remedied in the subsequent proceedings conducted upon the applicants’ subsidiary prosecution, which led to a violation of Article 3 echr.133 However, the ECtHR has also held that when an applicant pursues criminal prosecution in the competent courts as a private or subsidiary prosecutor he or she is obliged to duly comply with the relevant procedural requirements, concerning those of exhaustion of domestic remedies. Thus, for instance, in Modrić v. Croatia, the ECtHR found that the applicant’s obstinacy in pursuing inapplicable legal remedies in the course of the criminal proceedings led to his 128 129 130 131 132 133

ECtHR (Decision) Zemzami and Barraux v. France, no. 20201/07, 3 May 2011. ECtHR (Judgment) Alboreo v. France, no. 51019/08, 20 October 2011, paras. 150–154. ECtHR (Judgment) Trévalec v. Belgium, no. 30812/07, 14 June 2011, para. 96. ECtHR (Judgment) Caloc v. France, no. 33951/96, 20 July 2000, para. 92. ECtHR (Judgment) Petrović v. Serbia, no. 40485/08, 15 July 2014, paras. 93–96. ECtHR (Judgment) Réti and Fizli v. Hungary, no. 31373/11, 25 September 2012, para. 35.

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failure to comply with the six-month time-limit for bringing his application before it following the exhaustion of the relevant domestic remedies.134 The ECtHR also found in Bouguerbous v. France that the applicant, who had participated in the proceedings as partie civile, had been required to challenge the decision of an investigating judge to discontinue the proceedings by bringing an appeal before a three-judge panel of the competent court in order to exhaust the domestic remedies.135 In some instances, the ECtHR also reproached the applicant for not requesting further investigative measures in the course of the relevant domestic proceedings.136 In addition to the above examined cases in which, in line with the general procedural regularity, the duty to secure effective procedural response to a human rights offence was incumbent on the competent courts, there may be instances in which the inadequate actions and omissions of the public prosecutor could hinder the effectiveness of the mechanism of private or subsidiary prosecution. This was the case, for instance, in Jasar v. the former Yugoslav Republic of Macedonia in which the competent public prosecutor took no measures to elucidate the circumstances of the applicant’s alleged ill-treatment by the police, nor did he dismiss the criminal complaint lodged by the applicant, which overall, as the ECtHR noted, “prevented the applicant from taking over the investigation as a subsidiary complainant and denied him access to the subsequent proceedings before the court of competent jurisdiction.”137 The case-law in Jasar was further developed in the case of Remetin v. Croatia (No. 2) concerning the inactivity of the public prosecutor to pursue the case or to dismiss the criminal complaint and thus to allow the applicant to take over the prosecution by taking the procedural actions which he deemed relevant in the observance of his rights. The ECtHR explained that the relevancy of private or subsidiary prosecution, which under the relevant domestic procedural arrangement depended on the need for the public prosecutor to dismiss the charges, lay in the fact that it allowed an injured party to pursue his criminal complaint before the competent courts, which could have, if the ensuing court proceedings had proved to be effective, satisfied the state’s procedural obligation under the ECtHR.138

134 135 136 137

ECtHR (Decision) Modrić v. Croatia, no. 21609/06, 4 June 2009. ECtHR (Decision) Bouguerbous v. France, no. 47779/06, 23 March 2010. ECtHR (Judgment) Fernandez Kerr v. Belgium, no. 19328/09, 26 September 2013, para. 73. ECtHR (Judgment) Jasar v. the former Yugoslav Republic of Macedonia, no. 69908/01, 15 February 2007, para. 59. 138 ECtHR (Judgment) Remetin v. Croatia (No. 2), no. 7446/12, 24 July 2014, para. 112.

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The function of private prosecution referred to in Remetin (No. 2), just as in all other cases examined in the preceding discussion, concerns the second aspect of the function of private prosecution in the context of the ECtHR caselaw, namely, that of a remedial measure securing the overall effectiveness of the proceedings. However, in the case of Mitić v. Serbia, concerning a suspicious death in prison, its function was also contemplated in the context of effective victim participation implied in the concept of the procedural obligation. Specifically, the ECtHR noted that the applicant had had an opportunity to institute subsidiary prosecution, which resulted in an effective re-­examination of the case in the context of his specific arguments. This therefore led the ECtHR to conclude that “the applicant has been involved in the procedure to the extent necessary to safeguard his interest as a next-of-kin.”139 Similarly, in the case of Bone v. France, the ECtHR found that the applicants’ effective participation as partie civile in an investigation into an accidental death of their relative, during which they were duly legally represented and the investigating judge examined all their arguments, met all the requirements of the procedural obligation under Article 2 echr.140 Moreover, in Milan v. France the ECtHR stressed that the duly observed partie civile model had secured an effective legal avenue for the victim’s participation in the proceedings.141 In line with this case-law, in Al-Fayed v. France, the ECtHR emphasised that any complaint as to the ineffectiveness of an investigation could be remedied by an avenue open to the victims to institute further proceedings as partie civile.142 We can thus observe that the private prosecution model falls into the contemplated regularity through which the two mechanism of procedural optimisation operate in the ECtHR case-law. It should be noted, however, that it primarily performs the function of a remedial guarantee of overall effective discharge of the procedural obligation by the state authorities, and only secondarily of an element in the assessment of adequacy of victim participation in the proceedings, and consequently of the effectiveness of the state’s compliance with its procedural obligation. 2.3.2 The Review Model in the ECtHR Case-law The dual function of the mechanisms of procedural optimisation is more clearly and directly contemplated with regard to the national varieties of the review model than is the case of the model of private prosecution. This in 139 140 141 142

ECtHR (Judgment) Mitić v. Serbia, no. 31963/08, 22 January 2013, para. 57. ECtHR (Judgment) Bone v. France, no. 69869/01, 1 March 2005. ECtHR (Judgment) Milan v. France, no. 7549/03, 24 January 2008, para. 69. ECtHR (Decision) Al-Fayed v. France, no. 38501/02, 27 September 2007, para. 83.

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particular follows from two aspects pertinent to the procedural design of the review model. Firstly, the possibility of review of the prosecutorial decisionmaking is not construed as a privilege of the private party but rather as a set of correlative claims and duties of the relevant actors in the charging process. Secondly, unlike in the case of the private prosecution model, there is no primacy of any of the two functions (effective victim participation and remedial guarantee) in the context of the review model. There is therefore, as a rule, a duty of the victim to avail himself or herself of the possibility of challenging the particular prosecutorial decisions bearing on his or her protected interests implied in the exercise of the function of criminal prosecution. There is, at the same time, a correlative duty of the state, implied in the victim’s right-claim to effective application of criminal-law mechanism, to provide the effective mechanisms of review. The latter aspect essentially involves the question of effective victim participation in the proceedings, which has already been observed in the previous discussion on the specific requirements of effectiveness of the procedural obligation.143 We can further note certain modalities of the discharge of this duty which bear direct relevance to the prosecutorial decision-making in the charging process. The first requirement in this context is that the decisions of the competent prosecutor must be reasoned. This may be conducive not only to the question of effective victim participation in the proceedings but also to the appearance of the prosecutor’s observance of the rule of law. The ECtHR emphasised this in the Hugh Jordan case explaining that not only does a reasoned prosecutor’s decision provide the victims information about the case, allowing them to challenge that decision; it also reassures public confidence in the work of the prosecuting authorities, which is of particular importance in the controversial cases of killings by state agents.144 It follows that the decisions concerning the proceedings must contain specific details of the reasons for those decisions thus securing the possibility of an effective challenge for the victim. Failing that requirement, there is an indication of a failure of the state to comply with its procedural obligation. This was the case, for instance, in Trufin v. Romania and Velcea and Mazăre v. Romania where the ECtHR emphasised that a lack of reasoning impeded any effective public control and victims’ access to the investigation into a human

143 See supra 4.2.3.4. 144 ECtHR (Judgment) Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001, paras. 123–124.

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rights offence.145 In Khamzayev and Others v. Russia and Chitayev v. Russia the decision on the discontinuation of the investigation was not served on the applicants but they were merely notified of its existence. In these circumstances, the ECtHR considered that by merely notifying the applicants of that decision without providing them a copy of it essentially deprived them of any realistic opportunity to effectively challenge the decision and thus rendered the otherwise effective avenue of judicial review ineffective in the circumstances.146 The requirement of a reasoned decision may extend to access to other relevant information concerning a case. For instance, in the cited Trufin case this related to the specific documents from the case file,147 whereas in Anık and Others v. Turkey the victims were provided only with their own statements but not with any other document from the case file. The ECtHR held that this impeded their possibility of challenging the decision not to prosecute, and at the same time removed any prospect of securing the overall effectiveness of the proceedings from the perspective of the human rights requirements. The ECtHR thus directly contemplated the two functions of the mechanisms of procedural optimisation (effective victim participation and remedial measure) into a single structure. In particular, the ECtHR noted: As such, the applicants were not able to take cognisance of the documents in the file when they lodged their objection against the decision not to prosecute. To this end, the Court is of the opinion that, had the applicants been in possession of the documents from the investigation file at the time they lodged that objection, they could have drawn the attention of the Diyarbakır Military Court to the above mentioned inconsistent information provided to the military prosecutor by some of the defendants, as well as the other shortcomings in the investigation, and could have increased the prospect of success of their objection … That, in turn, might have prevented the violation of Article 2 of the Convention found above.148 Similarly, in Isayeva v. Russia, where the applicant was not duly informed of the pending criminal proceedings and allowed to take part in them, the ECtHR 145 ECtHR (Judgment) Trufin v. Romania, no. 3990/04, 20 October 2009, para. 52; ECtHR (Judgment) Velcea and Mazăre v. Romania, no. 64301/01, 1 December 2009, para. 114. 146 ECtHR (Judgment) Khamzayev and Others v. Russia, no. 1503/02, 3 May 2011, paras. 205–206; ECtHR (Judgment) Chitayev v. Russia, no. 59334/00, 18 January 2007, paras. 139–140. 147 ECtHR (Judgment) Trufin v. Romania, no. 3990/04, 20 October 2009, para. 52. 148 ECtHR (Judgment) Anık and Others v. Turkey, no. 63758/00, 5 June 2007, para.76.

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found that it deprived her of any effective prospect of challenging the decision on discontinuation of the proceedings. In the case at issue the ECtHR expressly construed the victim’s possibility of challenging the prosecutor’s decision as a question of effectiveness of the State’s discharge of its procedural obligation. It in particular stressed: The absence of any realistic possibility for the applicant to challenge the conclusions of the report and, ultimately, those of the investigation, cannot be said to be in conformity with the principles enumerated above concerning whether the force used was justified in the circumstances and the identification and punishment of those responsible.149 The possibility of effective participation in the proceedings and expressing views on the particular prosecutorial decisions, bearing significance to the victim’s individual rights, can also extend to horizontal and vertical discretion in the charging process. For instance, in the case of Dimitrova and Others v. Bulgaria the public prosecutor set in motion the plea bargaining procedure in which he reduced the severity of charges against a person responsible for the killing of the applicants’ relative. He did so, however, without involving the applicants in the procedure and allowing them to express their views, and without informing them of the plea bargaining arrangement. In such circumstances the ­ECtHR held that the procedural arrangement at issue deprived the applicants of any meaningful opportunity to participate in the proceedings, contrary to the requirements of the procedural obligation under Article 2 echr.150 On the other hand, conversely to the above cited examples, in Mustafa Tunç and Fecire Tunç v. Turkey the ECtHR noted that the victims had been provided with a full copy of the decision not to prosecute, which contained a summary of the investigation materials and the reasons for the decision. They were also granted access to the case file and a possibility of obtaining copies of all items of relevant evidence. This allowed them to effectively challenge the prosecutor’s decision not to prosecute before the competent court, which resulted in the re-examination of the case in the light of their specific arguments. In such circumstances, the ECtHR concluded that the victims had effectively participated in the proceedings.151 149 ECtHR (Judgment) Isayeva v. Russia, no. 57950/00, 24 February 2005, para. 223. 150 ECtHR (Judgment) Dimitrova and Others v. Bulgaria, no. 44862/04, 27 January 2011, paras. 87–89. 151 ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, paras. 213–216.

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The function of the judicial review as a remedial measure guaranteeing overall effectiveness of the proceedings will ordinarily be adequately secured through the possibility of a review of the prosecutor’s decisions in light of the relevant human rights requirements.152 Naturally, in an ideal situation in which the function of criminal prosecution is discharged effectively and without any unlawfulness or flagrant shortcomings from the perspective of the relevant human rights requirements, such a mechanism would be redundant. In theory, therefore, the state could opt for one of two possibilities: first, secure the effective and adequate discharge of the function of criminal prosecution satisfying all pertinent human rights requirements and not provide a possibility of review of the prosecutorial decisions; and second, accept that there could be failures in the discharge of the function of criminal prosecution and secure a possibility of review of the prosecutorial decisions. It is clear from the perspective of a variety of self-explanatory reasons that the former situation is unfeasible in reality. We should, therefore, read with particular caution the statement made by the ECtHR in the Mustafa Tunç and Fecire Tunç case where it stressed that “[w]here there has been no unlawfulness or flagrant shortcoming which could lead the Court to find that the investigation was flawed, the Court would exceed the limits of its jurisdiction were it to interpret Article 2 as imposing a requirement on the authorities to put in place a judicial remedy.”153 Rather, if we accept that “unlawfulness or flagrant shortcoming” in the proceedings could occur, it would be more useful to read the further statement made by the ECtHR in the same case: However, while it is not in itself a requirement, the intervention of a court or a judge enjoying sufficient statutory safeguards of independence is a supplementary element enabling the independence of the investigation as a whole to be guaranteed … Such intervention may prove necessary in certain cases, given the nature of the facts in issue and the particular context in which they occur.154 Or, to be more clear and precise, we can conclude from the above discussion that the possibility of review does not have only an instrumental value as a guarantee of the particular aspects of effectiveness of the procedural obligation, such as the requirement of independence which was in issue in Mustafa 152 ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, para. 280. 153 Ibid., para. 232. 154 Ibid., para. 233.

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Tunç and Fecire Tunç, but also as a requirement of effective victim participation in the proceedings, the absence of which could lead to a violation of the echr. The possibility of review in this context is principally envisaged as a judicial review of the prosecutorial decision-making by a competent court, although the ECtHR has stressed that it could not micro-manage the domestic systems so as to impose a particular model.155 However, although some other design of the review model will not necessarily imply the lack of adequate victim participation in the proceedings, the judicial review model is contemplated as an appropriate guarantee securing the overall effectiveness of the discharge of the function of criminal prosecution.156 This can be observed in the case of Trubnikov v. Russia where the ECtHR found that a departmental complaint to the higher prosecutor against a nonprosecution decision did not constitute an effective remedy within the meaning of Article 35 § 1 echr157 because it was discretionary, as it conferred upon the prosecutor discretionary powers. However, it considered a possibility of review before the competent court to be an effective legal avenue on the following grounds: The Court notes that although a court itself has no competence to institute criminal proceedings, its power to annul a refusal to institute criminal proceedings and indicate the defects to be addressed appears to be a substantial safeguard against the arbitrary exercise of powers by the investigating authority.158 This position was further explained in Belevitskiy v. Russia in which the ECtHR stressed that a hierarchical appeal, such as the one before the higher prosecutor, “which does not give the person making it a personal right to the exercise by the State of its supervisory powers cannot be regarded as an effective 155 ECtHR (Decision) Gürtekin and Others v. Cyprus, nos. 60441/13, 68206/13 and 68667/13, 11 March 2014, para. 28. 156 Note that in the particular circumstances of a case the judicial review model, although in general effective, may fall short of the requirement of effectiveness. See further: ECtHR (Judgment) Zakharin and Others v. Russia, no. 22458/04, 12 November 2015, paras. 49–56. 157 See, by contrast, Lobanovs v. Latvia, where a complaint under the procedural limb of ­Article 3 was declared inadmissible due to the applicant’s failure to seek a departmental review of the decision not to prosecute (ECtHR (Decision) Lobanovs v. Latvia, no. 16987/02, 28 September 2010, paras. 42–43). 158 ECtHR (Decision) Trubinkov v. Russia, no. 49790/99, 14 October 2003.

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remedy for the purposes of Article 35 of the Convention.” It went further to explain this statement by holding the following: Under the Russian Code of Criminal Procedure, an appeal to a higher prosecutor constitutes a complaint to a superior authority for the purpose of criticising shortcomings in the inquiry carried out by its subordinates. Such an appeal is in fact an information statement followed by a request to that authority to make use of its power to order an additional inquiry if it sees fit to do so. The higher prosecutor is not required to hear the complainant and the ensuing proceedings are entirely a matter between the supervising prosecutor and his subordinates. The complainant is not a party to any proceedings and is entitled only to obtain information about the way in which the supervisory body has dealt with his hierarchical appeal. It follows that an appeal to a higher prosecutor does not give the person employing it a personal right to the exercise by the State of its supervisory powers, and that such an appeal does not therefore constitute an effective remedy within the meaning of Article 35 of the Convention.159 Nevertheless, in line with the findings in Trubnikov, the ECtHR accepted that a judicial review of the decision not to prosecute could be considered as an effective domestic avenue given that it provided for a possibility of contentious examination of the relevant arguments in the public and adversarial proceedings, which could result in the competent court’s order for a re-examination of the prosecutor’s decision and institution of the investigation.160 Accordingly, for instance, in Slyusarev v. Russia the ECtHR considered that the applicant should have challenged the prosecutor’s decision not to open the formal investigation on the grounds of lack of prima faciae evidence by seeking a review before the competent court.161 The same approach was followed in Borgdorf v. Russia and Mikhalchuk v. Russia in which the ECtHR placed emphasis on the fact that the applicants were duly informed of the decision not to prosecute and, although legally represented, they failed to avail themselves of the possibility of seeking judicial review of that decision.162

159 160 161 162

ECtHR (Judgment) Belevitskiy v. Russia, no. 72967/01, 1 March 2007, paras. 59–60. Ibid., para. 61. ECtHR (Decision) Slyusarev v. Russia, no. 60333/00, 9 November 2006. ECtHR (Decision) Borgdorf v. Russia, no. 20427/05, 22 October 2013; ECtHR (Judgment) Mikhalchuk v. Russia, no. 33803/04, 23 April 2015, para. 35.

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However, the mere existence of a possibility of judicial review would not in itself be sufficient. In Rupa v. Romania the ECtHR rejected the respondent Government’s objection of non-exhaustion of domestic remedies for failure to use the possibility of judicial review against the decision not to prosecute on the grounds, inter alia, that the relevant procedure of judicial review existing at the time in the Romanian system was not regulated in a sufficiently clear and precise manner.163 Furthermore, in Knyazev v. Russia the ECtHR followed the cited Trubnikov case-law and expressly recognised that the existence of a possibility of judicial review of the prosecutorial decisions in the context of criminal investigation constituted an effective remedy under Article 13 echr.164 It thus contemplated the existence of judicial review as a demand which could be righteously claimed against the state under Article 13 echr. The possibility of judicial review was examined under Article 13 echr in the case of Stoica v. Romania in which the ECtHR assessed the relevant changes in the Romanian legislation introducing the possibility of judicial review of the decision not to prosecute. It observed that the newly introduced provisions in the relevant domestic law provided a detailed procedure to be followed before the courts and the applicable time-limits for seeking review, which gave the courts the power to control the investigation carried out by the prosecutor in the case, and to hear evidence. The ECtHR therefore found no violation of Article 13 echr.165 This approach was later duly followed in the context of the question of exhaustion of domestic remedies under Article 35 § 1 echr in the cases Chiriţă v. Romania and Lazariu v. Romania.166 Judicial review of the decision not to prosecute is equally relevant in the context of cases in which the public prosecutor exercises his or her discretionary prerogative of expediency and, as observed in some of the above examples, also in the cases in which the decision not to prosecute relates to the practical and technical questions, such as the discontinuation of the investigation and prosecution for lack of evidence, or the purported lack of independence of the proceedings. This can be observed in particular in the case of Epözdemir v. Turkey in which the ECtHR held that to the extent that the public prosecutor’s decision could be challenged as not being justified by the available evidence, the victim 163 164 165 166

ECtHR (Decision) Rupa v. Romania, no. 58478/00, 14 December 2004. ECtHR (Judgment) Knyazev v. Russia, no. 25948/05, 8 November 2007, paras. 86–91. ECtHR (Judgment) Stoica v. Romania, no. 42722/02, 4 March 2008, paras. 105–110. ECtHR (Judgment) Chiriţă v. Romania, no. 37147/02, 29 September 2009, para. 100; ECtHR (Judgment) Lazariu v. Romania, no. 31973/03, 13 November 2014, para. 187.

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is required to seek a judicial review of such a decision, which could secure the re-examination of the case in the light of the victim’s specific arguments. Accordingly, it could substantially increase the overall prospect of success in the vindication of the victim’s human rights through the mechanisms of criminal investigation and prosecution of those responsible for criminal infringements of those rights.167 Likewise, as already observed above in the Mustafa Tunç and Fecire Tunç case in the context of the lack of independence, in the case of Ramsahai and Others v. the Netherlands the ECtHR stressed that the possibility of review of the prosecutorial decision-making by an independent tribunal contributed to the appearance of independence of the investigation, even if certain doubts could have arisen with regard to the relationship of the prosecutor conducting the investigation and those implicated in the events.168 It must, therefore, be noted that, unlike the private prosecution model which is essentially constructed as an all-or-nothing solution in securing the observance of the human rights factor in the context of criminal prosecution, the design of the review model is adequate to address particular aspects of the prosecuting authorities’ procedural obligation implicit in the rightclaim to effective application of criminal-law mechanisms in human rights protection. 3 Conclusion The differentiation of the human rights component in the charging process has, on the one hand, instrumental value for the operational efficiency of the criminal justice system and, at the same time, it is an element in the assessment of effectiveness of the state authorities’ discharge of their procedural obligation. In the previous discussion this has been contemplated as the dual function of the mechanisms of procedural optimisation. This separation of functions is notably only of a conceptual and analytical relevance since, as already argued above, it would be practically inconceivable for the mechanisms of procedural optimisation to operate differently with regard to each function assigned to them from the perspective of human rights law. In other words, it would be difficult to imagine or construct an operational design of, for instance, the model of judicial review in a criminal justice system 167 ECtHR (Decision) Epözdemir v. Turkey, no. 57039/00, 31 January 2002. 168 ECtHR (Judgment) Ramsahai and Others v. the Netherlands [gc], no. 52391/99, 15 May 2007, para. 345.

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which could bifurcate in its performance depending on the dual function assigned to it. In reality, whenever an outcome of a prosecutorial decisionmaking is challenged by means of judicial review, it simultaneously secures an effective participation for the private party in the proceedings, namely the victim, allowing him or her to express the views relevant for the observance of the pertinent human rights expectations. It thereby simultaneously assures the operational efficiency of the criminal justice system, seeking to avoid condemnation at the international level of human rights supervision. It follows that, irrespective of its analytical and theoretical value, the distinction of functions of the mechanisms of procedural optimisation appears to be artificial in practical reasoning. The procedural optimisation of the human rights factor in the charging process implies differentiation of its inherent weight across the variety of actions and situations pertinent to the performance of the function of criminal prosecution. In order to avoid running into a conceptual misapprehension we should in particular be mindful of two components determining this construction. Firstly, it is of paramount importance not to lose sight of the fact that the human rights factor is not an undifferentiated legal conception but a structure determined by the specific requirements of applicability and effectiveness developed under the relevant human rights mechanisms. It accordingly follows that differentiating the human rights factor means differentiating every particular aspect of applicability and effectiveness. This, as it was extensively discussed in Chapters 3 and 4, may include a variety of matters along a wide spectrum of fundamental or technical questions, such as the exercise of prosecutorial discretion or the taking of a particular investigative action. This is important to note given that the questions determining prosecutorial decision-­making may vary depending on whether a particular criminal justice system adheres to the principle of expediency or legality in the charging process. In the former case, the differentiation of the human rights factor will generally include both questions (fundamental and technical) whereas in the latter case the questions of a rather technical nature, such as sufficiency of evidence, will be in the focus. This is, of course, entirely correct to the extent that the relevant relations of optimisation are discussed in the context of ideals, which may not be exact in the procedural reality. In this connection the example of the German criminal justice system, which traditionally adheres to the principle of legality, is illustrative. Judicial review of the prosecutorial decision-making in the German system will be excluded in cases of the prosecutor’s reliance on the principle of expediency in exceptional cases in which that is allowed under the domestic procedural law. Accordingly, being limited by the scope of the present discussion from going into any further details of this comparative example, it could

Optimising Variances

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be assumed in this context that the German criminal justice system either sufficiently effectively differentiates the issues of applicability and effectiveness of the human rights factor in the charging process by other means, or that its procedural arrangement functions on the edge of the instrumental and substantive effectiveness from the perspective of human rights law. Further, the differentiation of the human rights element in the charging process means securing that in the given circumstances the mechanism of criminal prosecution functions as a properly aligned structure of the human rights element, conceived as h(φ), and the public-interest element, conceived as p(φ). Naturally, the mechanism of criminal prosecution in this context should be understood in a wider sense encompassing all procedural means and actions aimed at the elucidation of the circumstances of the case and bringing to justice those responsible for a human rights offence. The differentiation of the human rights element in the charging process can generally be construed in comparative law and international material through two mechanisms of procedural optimisation, denoted as the private prosecution model and the review model. There is, of course, a variety of procedural designs of these two models in comparative law depending on the given procedural arrangement the model is integrated in. Nevertheless, these different procedural designs converge to the extent that it is possible to contemplate only variations of the two models rather than a variety of the models of procedural optimisation. The private prosecution model operates on the basis of either a subsidiary prosecution by a private party, or institution of and participation in the proceedings by a private party (partie civile) in instances in which the competent public prosecutor decided not to prosecute. In the former variant the victim takes over prosecution from the public prosecutor and independently pursues the case before the competent court, whereas in the latter (partie civile) variant the victim, by applying to the competent court, institutes further proceedings and procedurally maintains the function of criminal prosecution operating alongside the competent public prosecutor, who is instructed by the court to continue with the case. The review model operates in comparative law as a variant of mixed judicial-­departmental review, or only as a departmental review of the public prosecutor’s decision not to prosecute. In the mixed judicial-departmental review, the victim or another interested party is required to challenge the prosecutorial decision-making first before the higher prosecutor and, in case of an unsuccessful use of that remedy, he or she may complain before the competent court. In the purely departmental review variant, the challenge of the decision not to prosecute is possible only before the higher prosecutor. In each case,

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however, the reviewing body has a possibility of instructing the competent prosecutor to continue with the case. The two models of procedural optimisation as a control by a private party over the prosecutorial decision-making are also envisaged in the international material adopted in the context of the coe and the eu. However, whereas Rec(2000)19 contemplates the possibility of ensuring victim control over prosecutorial decisions through both models of procedural optimisation, the Victims Directive is limited only to the review model. Moreover, in some instances the review model under the Victims Directive is constructed only in its departmental review variant, which, as it has been observed, could raise an issue of adequacy from the perspective of the human rights requirements. In performing the function of procedural optimisation the private prosecution model operates as an all-or-nothing solution in which the public prosecutor who finds that the determined relative weight of the human rights element does not warrant further criminal prosecution169 allows the private party to pursue the case before the competent court by performing the function of criminal prosecution. This is true for both the subsidiary prosecution variant, in which such procedural arrangement is institutionalised, and the partie civile variant, in which it appears as a procedural reality. In this model the private party is the (principal) procedural actor vested with the duty to vindicate the factors implicit in the overall structure of the charging process. In other words, the victim is no longer in a position to demand that the necessary mechanisms of criminal-law be effectively implemented but in a position to effectively apply those mechanisms. On the other hand, in the review model, the public prosecutor remains the procedural actor pursuing the mechanism of criminal prosecution but in discharging that duty he or she may be put in a position to re-examine the relevant decisions in the light of the specific private party’s arguments. The validity of the public prosecutor’s decision-making in effectively applying the relevant criminal-law mechanisms may be put into question, and if necessary corrected, by the victim’s claim that those criminal-law mechanisms be effectively applied. 169 Here we can assume that the public prosecutor recognised the inherent weight of the human rights element and established its relative weight in the circumstances. A failure with regard to the first step in the calculation, namely the recognition of the inherent weight, suggests a structural problem to which further discussion concerning the procedural optimisation is inapplicable. We are, therefore, rather concerned with instances in which there is, from the victim’s perspective, a doubt as to the proper calculation of the relative weight.

Optimising Variances

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By observing the conceptual design of the two mechanisms of procedural optimisation we can understand why the private prosecution model is conceived as a privilege and the review model as an implicit aspect of the right to an effective remedy in the ECtHR case-law. It follows from the conceptual structure of the right-claim to effective application of criminal-law mechanisms in human rights protection which does not vest in the private party a right to criminal prosecution but a right that the relevant criminal-law mechanisms be effectively applied.170 Accordingly, as we have seen in the analysis of the ECtHR case-law, a criminal justice system would be at variance with the relevant human rights requirements in case of the impossibility for the victim to challenge the prosecutorial decisions decisively affecting his or her rights, which would not necessarily be the case if there were an impossibility for the victim to have recourse to private prosecution.171 170 See the concurring opinion of Judge Sajó in the case of Lakatoš and Others v. Serbia in which he argued that there was no place for a conceptual divergence between the subsidiary prosecution model and the review model in assessing whether the victim needed to avail himself of such a possibility before bringing his complaints before the ECtHR (see ECtHR (Judgment) Lakatoš and Others v. Serbia, no. 3363/08, 7 January 2014). 171 Naturally, an issue would arise in the case of a human rights offence which should most appropriately be prosecuted by private prosecution.

chapter 8

Conclusion It is common ground that contemporary criminal law is changing.1 The conventional approach to criminal law as a prerogative of public authority and a mechanism of ultimate protection of public interests and the normal functioning of civic society is being subjected to various theoretical discussions, such as rethinking the problem of criminalisation,2 and analysing the position of parties in criminal procedure.3 There are also complex and multidimensional developments in the t­ heory and practice of human rights law often inaudibly but resolutely inducing changes in the contemporary criminal justice discourse. The relevant aspect of these developments which this study has concentrated on is the question of proceduralisation of human rights, which in its criminal-law aspect, generally speaking, relates to the obligation to investigate, prosecute and, if appropriate, punish criminal attacks on human rights. This function of human rights is in theory often denoted as the sword function of human rights law which, as opposed to the defensive shield function, leads to the triggering of the criminallaw mechanisms on the basis of the relevant human rights considerations. The function of criminal prosecution is thus no longer only a public prerogative but also a mechanism of human rights protection. To investigate, prosecute and punish a criminal attack on human rights is a legal obligation flowing from the human rights of an individual. The fact that such an application of criminal-law mechanisms may also be induced by some publiclaw agenda does not fundamentally change or distort the conceptual basis of this human rights assertion. It would be, however, wrong to assume that there is no convergence between the vindication of human rights and the enforcement of a democratic state’s criminal policy, which in the context of the ultima ratio societas protection ordinarily encompasses an exalted receptiveness to the human rights agenda. The question is therefore not one of a conflict but rather of a coexistence of the human rights induced requirement and the public prerogative of criminal prosecution. 1 J. Edwards, “Justice Denied: The Criminal Law and the Ouster of the Courts”, 30(4) Oxford Journal of Legal Studies (2010), p. 725. 2 D. Husak, “Criminal Law Theory”, in M.P. Golding and W.A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (Malden, Blackwell Publishing 2008), p. 107. 3 Edwards, supra n. 8.1, p. 741.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004337763_009

Conclusion

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In the contemporary legal discourse to say: “I have a right to physical integrity,” equates to three distinctive statements: (1) “I have a right that the state not interfere with my physical integrity;” (2) “I have a right that the state protect my physical integrity from (criminal) interferences, including the one by private parties;” and (3) “I have a right, in the event of a criminal interference with my physical integrity, that it be effectively investigated and, if appropriate, prosecuted so that those responsible are held accountable.”4 The latter statement, as conceived in this study, concerns the right-claim to effective application of criminal-law mechanisms in human rights protection. The conceptual framework through which this claim was construed with regard to the fundamental or core “right to protection of physical integrity” could be, theoretically speaking, applied to any other individual human right of civil and political nature that can be enforced in the courts. This logical and conceptual juridical construction of the right-claim to effective application of criminal-law mechanisms in human rights protection on the substantive and criterial level operates as a particular instance of the normative expression of the necessity of legal enforcement and political effectuation of an individual’s freedom and well-being. It is therefore underlined with the right reasons or the reasons by virtue of which an individual’s freedom and well-being should be legally protected in the first place, and is not limited to promoting some related public interests implicit in the prosecution of a criminal interference with an individual’s human rights. In practical reasoning the right-claim to effective application of criminal-law mechanisms (denoted in this study as h(φ)) designates the individual-­based aspect of the function of criminal prosecution which functions concurrently with the relevant public-based inferences implicit in the exercise of criminal prosecution (denoted as p(φ)). Accordingly, the right assertion: “X has a right that Y h(φ)” indicates a structure where X denotes an individual, holder of human rights and beneficiary of corresponding duties; Y denotes any of the competent state authorities, or simply the state; and h(φ) designates individually-­required action of effective application of criminal-law mechanisms in human rights protection. This conceptual construction is sustainable in practical reasoning only on the basis of optimisation of the relevant factors of h(φ) and p(φ) within the complete structure of the duty of effective application of criminal-law 4 Note that this study takes the question of substantive protection of human rights through criminalisation as a given reality and concentrates only on the manner in which such protection is procedurally enforced. Nothing should be therefore inferred from its findings as an argument for criminalisation of a particular conduct endangering human rights.

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mechanisms (denoted as φ). This was demonstrated in this study on the examples of the exercise of discretion in criminal prosecution and the protection of the rights of the accused, as two particular aspects of the public-based requirement related to the administration of criminal justice. The consequence of the necessity of optimisation excludes the possibility of assertion that the individual-based aspect of the function of criminal prosecution could operate as an “(absolute) right to criminal prosecution.” At least two sets of arguments lead to this conclusion. Firstly, it would be difficult to construe a “right to criminal prosecution” as such without conceiving the possibility for the right-holder to waive that right. Putting the idiosyncrasy of possible procedural situations aside5 and without entering the debate whether solely from the perspective of criminal law there could be individual claim-rights, i.e., the question whether an individual can waive criminal prosecution as such,6 this discussion can be limited to observing that in principle an individual cannot waive the necessity of upholding the important public-based considerations implicit in the function of criminal prosecution.7 On the other hand, there is nothing to prevent an individual from waiving, expressly or tacitly, his or her claim to effective application of criminal-law mechanisms. There could be different modalities of the waiver, such as express rejection of the right to assume a designated procedural position or omission in the observance of the requisite procedural requirements for putting the claim at issue into action.8 In the case of a waiver, the function of criminal prosecution would operate only on the premises determined by the public-based considerations. The structure of the relevant relations is thus p(φ) = φ. In such instances there could be some consequential benefits for the individual affected by the human rights offence, and, for that matter, the relevant criminal justice discourse may recognise or facilitate various individual aspirations (such as victim participation in the proceedings) but all this would be occurring out of the framework of the right-claim to effective application of criminal-law

5 See further: Thomas, supra n. 1.47, pp. 247–277. 6 See further: G. Sreenivasan, “A Hybrid Theory of Claim-Rights”, 25(2) Oxford Journal of Legal Studies (2005), pp. 268–269. 7 Note that the possibility of a private prosecution of certain offences existing in some criminal justice systems is generally considered as a private conflict resolution in disguise without any policy goals existing independently of that aim (see further: Damaška, supra n. 2.35, p. 213). 8 Such as, for example, failure to challenge the decision not to prosecute (see further supra 7.2.3.2).

Conclusion

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mechanisms, vesting the individual with a possibility to righteously influence the discharge of the function of criminal prosecution.9 Secondly, as extensively discussed in this study, the correlative duty to the right-claim to effective application of criminal-law mechanisms is the state’s obligation to diligently institute the relevant procedures enforcing the requisite human rights protection through the mechanisms of criminal law. However, an objective impossibility of such procedures to achieve the desired result of identifying and holding those responsible to account, without any flaws or culpable failures on the part of the authorities in the optimisation of relevant individual and public-based factors, could not be considered as a failure in observing the right-claim to effective application of criminal-law mechanisms in human rights protection. It thus follows that an individual does not have an absolute right to criminal prosecution but a right that the relevant criminal-law mechanisms be applied without any flaws or culpable failures in the process.10 The discussed optimisation of the individual-based aspect of the function of criminal prosecution and the relevant public-based inferences implicit in the charging process is essentially differentiation of the human rights element within the range of solutions in the prosecutorial decision-making. This primarily relates to the question of effectiveness of the right-claim to effective application of criminal-law mechanisms since the scope of its applicability is in principle determined acontextually as a rule-like regularity. In any case, the 9

10

See further: ECtHR (Decision) Hay v. the United Kingdom, no. 41894/98, 17 October 2000. See, however, a somewhat intrusive approach in human rights adjudication: IACtHR (Judgment) Garrido and Baigorria v. Argentina, 27 August 1998, para. 72. This is expressed in the ECtHR case-law in the assertion that there is no right to obtain prosecution or conviction, which was in the cases of Mustafa Tunç and Fecire Tunç v. Turkey and Armani Da Silva v. the United Kingdom made in the context of a lack of evidence of an offence, irrespective of the diligent efforts of the authorities to investigate the case (see ECtHR (Judgment) Mustafa Tunç and Fecire Tunç v. Turkey [gc], no. 24014/05, 14 April 2015, para. 253; ECtHR (Judgment) Armani Da Silva v. the United Kingdom [gc], no. 5878/08, 30 March 2016, paras. 257–258). On the other hand, in the case of Abakarov v. Russia, the ECtHR found a violation of the authorities’ procedural obligation under Article 2 echr by observing that “[it] cannot but conclude that the inadequacy of the investigation into the deaths and injuries of dozens of civilians, including the deaths of the applicant’s family, was not the result of objective difficulties that can be attributed to the passage of time or the loss of evidence, but rather the result of the investigating authorities’ sheer unwillingness to establish the truth and punish those responsible” (­ ECtHR (Judgment) Abakarov v. Russia, no. 16664/07, 15 October 2015, para. 98). Accordingly, this discussion can be concluded by observing a more precise statement made in the case of Brecknell v. the United Kingdom, “[t]here is no absolute right however to obtain a prosecution or conviction” (see ECtHR (Judgment) Brecknell v. the United Kingdom, no. 32457/04, 27 November 2007, para. 66).

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emphasis is on the human rights institutions to make the relevant expectations and requirements clear and foreseeable. An unclear and ambiguous scope of the right-claim to effective application of criminal-law mechanisms could produce different adverse effects. On the one hand, it might contribute to an over-expansion of the use of criminal-law mechanisms in the protection of individual rights and thus extend the function of human rights law beyond its natural borders; or it might result in a reverse process of unreasonable reduction of the requisite human rights guarantees by neglecting the particular aspects of human rights protection through the mechanisms of criminal law. This study has observed the particular precepts of effectiveness of the procedural obligation in international human rights law which have been developed and construed in the practice of international human rights courts and other supervisory bodies. Fervently observing these requirements at the domestic level and the level of international adjudication can avert or at least inhibit the adverse effects which could be produced by the uncertainty and indistinctness of the human rights discourse. An extent of self-restraint on the part of international adjuratory bodies should be exercised in this context as there is a risk of distortion of the general tenets of effectiveness by the idiosyncrasy of situations appearing in particular cases. It is, nevertheless, primarily on the national authorities to prevent such a distortion of the relevant principles by securing an adequate optimisation of the relevant factors implicit in the charging process at the level of national criminal jurisdictions. In other words, an appropriate decision-making process at the domestic level would arguably avert the necessity of examining the idiosyncrasy of a situation at the level of international adjudication and would thus forestall the creation of applicable standards on the basis of very specific circumstances of a case. This study has searched for a solution to such optimisation in the discourse of criminal law by showing that it could function on the basis of two ideal models. One is the private prosecution model where the victim is allowed to vindicate his or her right-claim to effective application of criminal-law mechanisms by directly engaging the mechanisms of criminal prosecution. The other is the review model in which the victim puts the competent authorities in a position to re-examine their decisions in the light of his or her right-claim to effective application of criminal-law mechanisms in human rights protection. These two models operate in comparative law on the basis of a variety of procedural designs depending on the given procedural arrangement the model is integrated in. One should be mindful, however, that the variants of the two models in comparative law and international material observed in this study

Conclusion

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are primarily construed with a view to facilitating the public-based considerations implicit in the charging process rather than to differentiate the relevant tenets of applicability and effectiveness of the right-claim to effective application of criminal-law mechanisms in human rights protection. Thus, the variants of the two models of optimisation can be more or less in disagreement with the relevant human rights requirements. Adducing changes in the particular procedural practices in order to mitigate the consequences of such variances is a question surpassing the scope of this study whose aim is to conceptualise the alignment of the human rights and the public-law aspects of the function of criminal prosecution and to provide a theoretical framework for their adjustment. This study, therefore, leaves these conceptual premises of optimisation of the relevant considerations implied in the structure of the charging process to the fortunes of some further studies on the practical solutions for designing the mechanisms of incorporation of the human rights requirements into the discourse of contemporary criminal justice systems.

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Table of Cases

AComHPR*

Abdel Hadi, Ali Radi & Others v. Republic of Sudan, no. 368/09, 5 November 2013. Article 19 v. Eritrea, no. 275/03, 30 May 2007. Association of Victims of Post Electoral Violence & Interights v. Cameroon, no. 272/03, 25 November 2009. Commission Nationale des Droits de l’Homme et des Libertés v. Chad, no. 74/92, ­October 1995. Dr. Farouk Mohamed Ibrahim v. Sudan, no. 386/10, 25 February 2013. Egyptian Initiative for Personal Rights & Interights v. Egypt, no. 323/06, December 2011. Kevin Mgwanga Gunme et al v. Cameroon, no. 266/03, 27 May 2009. Malawi African Association and Others v. Mauritania, nos. 54/91 et al, 11 May 2000. Monim Elgak, Osman Hummeida and Amir Suliman v. Sudan, no. 379/09, 14 March 2014. Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, no. 204/97, 7 May 2001. Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi v. Zimbabwe, no. 295/04, 2 May 2012. Organisation & Centre on Housing Rights and Evictions v. Sudan, nos. 279/03-296/05, 27 May 2009. Sir Dawda K. Jawara v. Gambia, nos. 147/95-149/96, 11 May 2000. Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v. Sudan, no. 279/03-296/05, 27 May 2009. The Social and Economic Rights Action Center and the Center for Economic and ­Social Rights v. Nigeria, no. 155/96, 27 October 2001. Zimbabwe Human Rights NGO Forum v. Zimbabwe, no. 245/02, May 2006.

ACtHPR*

Beneficiaries of Late Norbert Zongo, Abdoulaye Nikiema alias Ablassé, Ernest ­Zongo and Blaise Ilboudo & The Burkinabè Human and Peoples’ Rights Movement v. Burkina Faso, no. 013/2011, 1 April 2014.

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EComHR*

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HRC

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IAComHR

Corumbiara Massacre (v. Brazil), 11 March 2004. Raquel Martín de Mejía v. Peru, 1 March 1996.

IACtHR*

Albán-Cornejo et al. v. Ecuador, 22 November 2007. Almonacid-Arellano et al v. Chile, 26 September 2006. Aloeboetoe et al. v. Suriname, 10 September 1993. Bámaca-Velásquez v. Guatemala, 25 November 2000. Barrios Altos v. Peru, 14 March 2001. Berenson-Mejía v. Peru, 25 November 2004. Blake v. Guatemala, 24 January 1998. Bulacio v. Argentina, 18 September 2003. Caballero-Delgado and Santana v. Colombia, 29 January 1997. Cantoral-Huamaní and García-Santa Cruz v. Peru, 10 July 2007. Cantos v. Argentina, 28 November 2002. Caracazo v. Venezuela, 29 August 2002. Castillo-Páez v. Peru, 3 November 1997.

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ICJ*

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National Jurisdictions Croatia

Constitutional Court, U-III-791/1997, 14 March 2001. Constitutional Court, U-III −6559/2010, 13 November 2014. Supreme Court, Kž-273/13-3, 16 January 2014.

France

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United Kingdom

Al-Saadoon & Others v. Secretary of State for Defence [2015] EWHC 715 (Admin), 17 March 2015. L v DPP [2013] EWHC 1752. McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011). R v DPP, ex parte Manning [2000] EWHC 562 (QB). R v Killick [2011] EWCA Crim 1608. R (Amin) v Secretary of State for the Home Department [2003] UKHL 51 (16 October 2003). R (B) v DPP [2009] EWHC 106 (Admin). R (Middleton) v Coroner for the Western District of Somerset [2004] UKHL 10 (11 March 2004). R (Waxman) v Crown Prosecution Service [2012] EWHC 133 (Admin).

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COE

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EU

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Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA). Convention Implementing the Schengen Agreement, Official Journal L 239, 22/09/2000 P. 0019–0062. Directive of the European Parliament and of the Council establishing minimum ­standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, 2011/0129 (COD) PE-CONS 37/12, 30 September 2012. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the Right to Information in Criminal Proceedings. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the Right to Interpretation and Translation in Criminal Proceedings. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 2007/C 306/01, 13 December 2007. Treaty of the Functioning of the European Union, consolidated version, 2012/C 326/01.



Inter-American system

American Convention on Human Rights, 22 November 1969. American Declaration of the Rights and Duties of Man, OEA/Ser.L./V.II.23, doc. 21, rev. 6 (1948).

UN

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, Treaty Series, vol. 1465, p. 85, 10 December 1984. Convention on the Elimination of All Forms of Discrimination against Women, United Nations, Treaty Series, vol. 1249, p. 13, 18 December 1979. Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3, 20 November 1989.

Bibliography

537

International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006. International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171, 16 December 1966. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, 15 November 2000. Universal Declaration of Human Rights, 217 A (III), 10 December 1948. Vienna Convention on the Law of Treaties, United Nations, Treaty Series, vol. 1155, p. 331, 23 May 1969.



Other International Statutes

Rome Statute of the International Criminal Court, 17 July 1998. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3, 8 June 1977.

National jurisdictions Austria

Code of Criminal Procedure (Strafprozessordnung 1975).

Belgium

Code of Criminal Procedure (Wetboek Van Strafvordering/Code d’instruction criminelle 1878).



Bosnia and Herzegovina

Code of Criminal Procedure (Zakon o krivičnom postupku Bosne i Hercegovine 2003).

Croatia

Act on Courts for Minors (Zakon o sudovima za mladež 2011). Act on Criminal Responsibility of Legal Entities (Zakon o odgovornosti pravnih osoba za kaznena djela 2003). Code of Criminal Procedure (Zakon o kaznenom postupku 2008). State Attorney’s Act (Zakon o državnom odvjetništvu 2009).

Finland

Criminal Procedure Act (Laki oikeudenkäynnistä rikosasioissa 1997).

France

Code of Criminal Procedure (Code de procédure pénale 1957).

538

Bibliography

Germany

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland 1949/1990). Code of Criminal Procedure (Strafprozessordnung 1950).

Hungary

Code of Criminal Procedure (évi XIX. törvény a Büntetőeljárásról 1998).

Luxembourg

Code of Criminal Procedure (Code d’instruction criminelle 1808).

Montenegro

Code of Criminal Procedure (Zakon o krivičnom postupku 2009).

Serbia

Code of Criminal Procedure (Zakon o krivičnom postupku 2011).

Slovenia

Code of Criminal Procedure (Zakon o kazenskem postopku 1994).

Spain

Constitution (Constitución Española 1978).

Sweden

Code of Judicial Procedure (Rättegångsbalken 1942).



United States

Florida Constitution 1968. Wisconsin State Chapter 950: Rights of Victims and Witnesses of Crime.



Table of Secondary Sources

AComHPR

Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben ­Island Guidelines), April 2008. Resolution on Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity, adopted at the 55th Ordinary Session, 28 April to 12 May 2014.

Bibliography

539

COE

Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, 30 March 2011. Guidelines of the Committee of Ministers of the Council of Europe on the protection of victims of terrorist acts, 2 March 2005. Recommendation Rec(91)11 of the Committee of Ministers to Member States concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults, 9 September 1991. Recommendation No. R (87) 18 of the Committee of Ministers to Member States concerning the simplification of criminal justice, 17 September 1987. Recommendation No. R (2000) 11 of the Committee of Ministers to Member States on action against trafficking in human beings for the purpose of sexual exploitation, 19 May 2000. Recommendation Rec(85)11 of the Committee of Ministers to Member States on the position of the victim in the framework of criminal law and procedure, 28 June 1985. Recommendation Rec(2001)16 of the Committee of Ministers to Member States on the protection of children against sexual exploitation, 31 October 2001. Recommendation Rec(2002)5 of the Committee of Ministers to Member States on the protection of women against violence, 30 April 2002. Recommendation No. R (2000) 2 of the Committee of Ministers to Member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, 19 January 2000. Recommendation Rec(2000)19 of the Committee of Ministers to Member States on the role of public prosecution in the criminal justice system, 6 October 2000. Recommendation 1582 (2002) of the Parliamentary Assembly on domestic violence against women, 27 September 2002.

EU

The European Parliament, Resolution on trafficking in human beings, A4-0326/95, OJ C 032, P. 0088, 5 February 1996.

UN

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, A/RES/60/147, 21 March 2006. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, A/RES/40/34, 29 November 1985. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/3452, 9 D ­ ecember 1975.

540

Bibliography

Declaration on the Protection of All Persons from Enforced Disappearance, E/CN.4/ RES/1992/29, 28 February 1992. General Assembly resolution 33/173 of 20 December 1978. General Assembly resolution 35/172 of 15 December 1980. General Assembly resolution 36/22 of 9 November 1981. General Assembly resolution 37/182 of 17 December 1982. General Assembly resolution 38/96 of 16 December 1983. General Assembly resolution 39/110 of 14 December 1984. General Assembly resolution 40/143 of 13 December 1985. General Assembly resolution 41/144 of 4 December 1986. General Assembly resolution 42/141 of 7 December 1987. General Assembly resolution 43/151 of 8 December 1988. Principles on the Effective Investigation and Documentation of Torture and Other­ Cruel, Inhuman or Degrading Treatment or Punishment, annexed to the UN ­General Assembly resolution 55/89 of 4 December 2000 and to the UN Commission on Human Rights resolution 2000/43 of 20 April 2000. Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, no. 1989/65 of 24 May 1989; adopted by the UN General ­Assembly by resolution 44/162 of 15 December 1989.

National Jurisdictions France

Ordonnance n° 58–1270 du 22 décembre 1958 portant loi organique relative au statut de la magistrature.



Table of International and Comparative Materials

COE

Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, General Report, CPT/Inf (2004) 28, 21 September 2004. Committee on Crime Problems and Group of Specialists on Assistance to Victims and Prevention of Victimisation, Victims of Terrorism—Policies and Legislation in ­Europe, PC-S-AV (2005) 04, 11 May 2005. Memorandum Explanatory: Recommendation No. R (2000) 2 of the Committee of Ministers to Member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights of 19 January 2000. Memorandum Explanatory: Recommendation Rec(2000)19 of the Committee of ­Ministers to Member States on the role of public prosecution in the criminal justice system.

Bibliography

541

Explanatory report to Protocol No. 7 (ETS No. 117). Explanatory report to the Council of Europe Convention on Action against Trafficking in Human Beings. Explanatory report to the Convention on Preventing and Combating Violence against Women and Domestic Violence. Explanatory report to the Convention on the Prevention of Terrorism. Explanatory report to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.

EU

Agreement between the International Criminal Court and the European Union on cooperation and assistance, L115, 28/04/2006. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Delivering an area of freedom, security and justice for Europe’s citizens, Action Plan Implementing the Stockholm Programme, COM(2010) 171, 20/04/2010. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: Strengthening Victims’ Rights in the EU, COM(2011) 274, 18/05/2011. European Commission, Directorate General Justice Guidance Document related to the  transposition and implementation of Directive 2012/29/EU of the European ­Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing ­Council Framework Decision 2001/220/JHA, Ares(2013)3763804, 19 December 2013. European Commission, Feasibility study to assess the possibilities, opportunities and needs to standardise national legislation on violence against women, violence against children and sexual orientation violence (Daphne Programme 2010). Council European, The Stockholm Programme—An Open and Secure Europe Serving and Protecting Citizens (2010/C 115/01). European Parliament, Committee on Women’s Rights and Gender Equality, ­Report on sexual exploitation and prostitution and its impact on gender equality (2013/ 2103(INI)), 4 February 2014.

UN

Commission on Human Rights, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and f­ undamental freedoms: Final report submitted by Theo van Boven, Special ­Rapporteur, E/CN.4/ Sub.2/1993/8, 2 July 1993. Committee on the Elimination of Discrimination against Women, General Recommendation No. 19 on violence against women, (1992) UN doc. CEDAW/C/1992/L.1/ Add.15.

542

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Department of Economic and Social Affairs, Fifth United Nations Congress on the ­Prevention of Crime and the Treatment of Offenders, A/CONF 56/10, 1–12 ­September 1975. Economic and Social Council, E/CN.4/1986/21. Economic and Social Council, E/CN.4/2004/88, Promotion and Protection of Human Rights: Impunity, report by D.F. Orentlicher, 27 February 2004. Economic and Social Council, E/CN.4/2005/6, Report of the Special Rapporteur on religious intolerance, 20 December 2004. Economic and Social Council, E/CN.4/2005/102, Promotion and Protection of Human Rights: Impunity—Report of the independent expert to update the Set of Principles to combat impunity, report by D.F. Orentlicher, 18 February 2005. Economic and Social Council, E/CN.4/Sub.2/1997/20, Question of the impunity of perpetrators of human rights violations (civil and political), report by L. Joinet, 26 June 1997. Human rights Committee, General Comment No. 6: Article 6—The right to life) 30 April 1982, HRI/GEN/1Rev.9 (Vol. I). Human rights Committee, General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, HRI/GEN/1/Rev.1 at 14. Human rights Committee, General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Faily, Home and Correspondence, and Protection of Honour and Reputation) 8 April 1988, HRI/GEN/1/Rev.9 (Vol. I). Human Rights Committee, General Comment No. 31 [80] Nature of the General ­Legal  Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/ Add.13. Human Rights Committee, General Comment No. 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial, 23 August 2007, CCPR/C/ GC/32. Human Rights Council, A/HRC/21/L.16, 24 September 2012. Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, HR/P/PT/8/Rev.1, United Nations Publication 1999. United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc. E/ST/CSDHA/.12 (1991). Vienna Declaration and Programme of Action, A/CONF.157/23, 25 June 1993.



United Kingdom

Law Commission report on “Double Jeopardy and Prosecution Appeals” (Law Com No. 267), 24 January 2001.

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Index Absolute rights 218, 311, 413, 415, 424 Accident 21, 99, 231–232, 247–248, 251, 256, 288, 291, 316, 323, 325, 357, 359, 488, 491 Accused 1, 3, 4n13, 13, 421–441, 458–459 Accusatorial / adversarial criminal justice system 68, 70, 261, 264, 298, 299, 497 Acquittal 71, 246n168, 430, 442, 446–449, 454n252, 456 See also conviction Actio popularis 166, 215 Active personality principle 116117, 120, 122, 144–146, 167, 209, 272, 273–274, 279, 361 African Charter on Human and Peoples’ Rights (achpr) 50, 76, 189–197 African Commission on Human and Peoples’ Rights (acomhpr) See African Charter on Human and Peoples’ Rights African Court of Human and Peoples’ Rights (acthpr) See African Charter on Human and Peoples’ Rights Aldana-Pindell R. 66 Alexy, R. 394, 435 American Convention on Human Rights (achr) 47, 50, 72, 75, 90, 170–189, 215, 447 American Declaration of the Rights and Duties of Man 49 Amnesty 65, 97, 124–126, 150, 170, 179–180, 186, 214, 425–426 Amparo 49 Ancillary civil claim 467–468 Arrest 54, 128, 134, 135, 222, 237, 239, 273, 292, 295, 320, 326, 421 Ashworth, A. 410, 412–413, 417–418, 435n164 Aut dedere aut judicare 100, 103, 116, 118, 120, 122, 146–147, 167, 169, 184, 211, 277, 284–285 Autopsy 98–100, 152, 244, 302, 317, 318, 323, 363 Balancing 401, 411, 413, 435–439, 462 Basch, F.F. 176–177

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 103–107, 185 Basic Principles of Justice for Victims  93–95, 104 Bassiouni, C. 104n73, 421–424, 451 Beating 146, 134, 236, 238, 316, 320, 371 Beyond reasonable doubt 30, 224, 238, 220n17 Bombardment 222–223 Boyle, A.E. 24 Brems, E. 81 Burden of proof 70, 240 Cançado Trindade, A.A. 172 Cassel, D. 24 Charging process(es) 3, 398–421, 426–427, 460–503 See also prosecution Charter of Fundamental Rights of the European Union 197–202, 448–450 Chiavario, M. 451 Children 110–114, 117–118, 134, 160, 200, 203, 210, 213, 238, 334, 340 Civil remedies 158, 214, 243, 247–254, 327, 340, 356, 360 Claim-right 364–365, 369, 375–380 Clapham, A. 39–40, 137–159, 390 Commission of inquiry 100, 157 Committee against Torture (Comat) See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 139, 289 Committee of Ministers (coe) 370–374 Competing rights / Conflict of rights 423– 424, 426–434, 434–441, 453–459 Confiscation of the proceeds of crime 112, 114, 117

574 Constitutional Court 289, 374, 426, 453, 469n37 Control of prosecution 464–479 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) 26, 137–159, 214,  390 Convention for the Protection of All Persons from Enforced Disappearance (ced) 26,   215, 159–170 Convention Implementing the Schengen Agreement (cisa) 448–450,  454n252 Convention on Action against Trafficking in Human Beings 115–117, 297 Convention on Preventing and Combating Violence against Women and Domestic Violence 118–120 Convention on the Prevention of Terrorism 121–122 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 116–118 Conviction 71, 311, 337–338, 430–433, 442, 446, 454n252, 456, 471, 507 Corrective justice 33, 56, 60–61 Correspondence 333, 335, 338 Council Framework Decision on combating terrorism 211–212 Council Framework Decision on the standing of victims in criminal proceedings 202,   210–212 Court of Justice of the European Union (cjeu) 198–205, 442, 448–450 Crime scene 143, 153, 244, 259, 308, 316, 324, 356, 363, 375 Criminalisation 15–16, 20, 45, 115, 117, 121, 137–139, 161–162, 441, 504 Criminal justice 1, 5–15, 61–77, 107, 200–201, 384–386, 389–392, 421–422, 464–479, 505–506 Criminal law of the enemy 14 Criminal offence 12, 19n64, 445, 448 Criminal procedure / process 1–5, 13–14, 53, 67–68, 421–424, 429, 431, 436, 456 Criminal sanctions 8, 13, 32, 43, 51, 55, 108, 110–112, 117, 126–127, 200, 213, 261, 263, 456n256

Index Damages 71, 90, 127, 186, 193, 214, 242, 247, 267, 290, 355, 467, 470 Damaška, M.R. 35, 67, 394n19, 465 De Schutter, O. 440 Declaration on Enforced Disappearance 96–97, 212 Definitional margin 413, 436, 437–439 Democracy 18, 78, 408, 413, 418, 421, 424, 440, 504 Democratic limit 40–41, 416–417, 438 Departmental review 477, 480–481 See also hierarchical review Derivative jurisdiction 285 Derivative rights 366 Detention 54, 85, 134, 147, 152, 166, 177, 236– 238, 240, 289, 298, 310, 312, 321–322, 330–331, 357–358, 421, 447, 489 Deterrence 45, 48, 53–54, 56, 58–61, 64, 82, 108, 178, 232, 368, 402, 452 Dignity 1, 20, 57–58, 76, 92, 95–96, 158, 166, 195–196, 201–203, 210, 216 Directive on combating the sexual abuse and sexual exploitation of children and child pornography 210–211 Directive on preventing and combating trafficking in human beings and protecting its victims 208–210 Directive on the right of access to a lawyer 201 Directive on the right to information in criminal proceedings 201 Disciplinary measures 93–94, 109, 126–128, 133, 141, 214, 226, 247, 257, 262, 473 Discretion 107, 127–128, 147–149, 167–168, 204, 214, 262, 393, 398, 471, 479 See also prosecutorial discretion Discrimination 75, 189, 194, 201, 348–354, 358 Distributive justice 33 Diversion 179, 188, 415, 419 Domestic servitude 327, 329, 358 Domestic violence 118–120, 213, 235, 238, 334, 339–340, 351, 358 Domestication of human rights standards 2, 14, 23, 23n87, 78, 287, 474 Double direction of positive obligations 91 Drittwirkung 37–39 Dröge, C. 42–43 Dubout, E. 31, 32, 36, 81–82, 84, 87–88

Index Due diligence 174–175, 182, 215 Due process 3–4, 54, 68, 386, 422, 427–428, 430–441, 456–459 Duty to investigate 16, 26, 44, 72, 102, 121, 123–124, 134, 151–159, 168, 173, 175–184, 189–190, 214, 217, 273, 357, 485 Duty to prosecute 16, 26, 44, 65, 102, 123–124, 129, 143–151, 169, 173, 175–184, 189–190, 214, 273, 357, 485 Duty to protect 38, 226 Duty to punish 12, 16, 44, 47, 65, 72, 126–127, 134, 175–184, 214, 217, 357, 485 Dworkin, R. 394–395, 411–412, 451 ecowas Community Court of Justice 196 Effective application of criminal-law mechanisms in human rights protection 4–6, 15, 17–18, 26, 41–42, 124–131, 207, 284, 286–287, 377–388, 395–396, 410, 426–463 Effective control of an area 270 Enforced Disappearances 20, 66, 96–98, 101–102, 109, 124–126, 131–132, 134–135, 159–170, 172, 177, 179, 181, 191, 212, 215, 222–225, 256, 273, 282, 287, 339, 357 Enforcement of human rights 5, 10–11, 22–26, 43, 143, 153, 198, 214, 383, 415, 437 European Arrest Warrant 167, 201 European Commission of Human Rights (ecomhr) 73, 484 European Convention on Human Rights (echr) 44–46, 50, 24–25, 217–363, 369, 378, 416–418, 422, 482–499 European Court of Human Rights (ecthr) See European Convention on Human Rights European Union (eu) 26, 197–212 Executions 20, 98–101, 126, 177, 179, 181, 184, 195, 212, 223 Execution of judgments 369–374 Expediency 149, 169, 390, 398, 399n32, 400–406, 420, 468, 470–473, 500 Expert / expert evidence 98, 100, 132, 156–157, 213, 258, 260, 296, 302, 308, 317–319, 323–325, 343, 463, 487

575 Extradition 99, 105, 110, 112, 114, 122, 145–150, 162, 167, 169, 184, 263, 273–274, 277, 286–287, 478 Family life 109, 201, 203, 218, 332–333, 339, 358–359, 413 Feinberg, J. 369 Flag principle 116, 120, 122, 144, 149, 211, 272, 361 Fletcher, G.P. 1, 423–424 Forensic examination 132–133, 152, 156, 268, 317–319, 323 Fredman, S. 366 Freedom 203, 367, 383, 431, 436, 448, 452, 505 See also freedom of assembly and association, freedom of expression, freedom of thought, conscience and religion Freedom of assembly and association 347–348 Freedom of expression 196–197, 345–347 Freedom of thought, conscience and religion 343–345 Functional victims’ rights 8, 13, 203–205, 303, 362, 464, 472, 480 See also victim Fundamental rights 5, 37–38, 49–50, 64, 84, 120, 162, 199–212, 218, 366, 376–384, 408, 410, 413, 437, 439, 440, 443, 448–450, 505 Fundamental Rights Agency 198 Garvey, S. 63–64 General concrete provision 266–367, 375–376, 378, 383 Generic consistency 436–437 Geneva Conventions 163–164 Gewirth, A. 367, 431, 436–437 Gould, A. 42 Gross human rights violations 20–21, 65–67, 125 Group of Experts on Action against Trafficking in Human Beings (greta) 115 Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations 108–110 Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts 120–121

576 Habermas, J. 34 Halpin, A. 366, 387n78 Hampton, J. 57 Harel, A. 378, 381–383 Hart, H.L.A. 55, 393 Hazards 230–232, 357, 359 Hennebel, L. 176 Herling, D. 397, 461–463 Hesse, K. 439 Hierarchical review 477, 480–481, 496–497 Human Rights Committee (hrc) See International Covenant on Civil and Political Rights Hohfeldian incidents 377–379 Home 238, 333, 335, 339, 358 Horizontal effect 21, 31, 42, 90 Hörnle, T. 58 Hottelier, M. 87 House of Lords 374 Hubert, C.A. 146, 148–149 Human rights based challenge 463, 474 Human rights element 1, 15, 392, 401, 406–421, 460, 462–463, 501–502 Human rights offences 18–22 Human trafficking 46, 110, 112–113, 115–116, 202–203, 208–209, 213, 216, 278–279, 327–329 Ill-treatment in custody 134, 236, 253, 326 Immunity 97, 124, 150, 246, 312, 377n49, 378, 389, 412, 427, 443 Impartiality 52, 58, 74, 93–94, 97, 99–100, 103, 105–106, 110, 123, 128–129, 134, 151–152, 155–157, 166, 181, 184, 192, 195–196, 230, 264, 269, 291–296, 299, 321, 327, 352, 362, 408, 421–422, 425, 455, 465, 480, 487 Impunity 101–104, 108–110, 125–127, 141, 146, 163, 166, 169, 178, 180, 189, 239, 253, 256, 262, 275, 283, 305, 400, 450, 479–480 Independency 23, 25, 34–35, 52, 82, 97, 100, 103, 109–110, 123, 129, 132, 136, 151, 155–156, 163, 191, 193, 195, 213, 230–233, 235, 257, 264, 268–269, 291–296, 299, 307, 313, 318, 327, 329–330, 356, 362, 366, 375, 382, 385, 407, 416, 422, 425, 465–467, 469, 477, 483, 487, 495, 498–499, 501 Ingelse, C. 137, 147, 149, 152, 154, 159

Index Inhuman or degrading treatment or punishment 21, 55, 92, 109, 124, 133, 137–143, 151, 156–157, 161, 195, 210, 236–239, 241, 253, 329, 421, 458 Injured party 69, 266–267, 302, 341, 418, 368, 485–486, 489 Inter-American Court of Human Rights (iacthr) See American Convention on Human Rights International cooperation in criminal matters 110–112, 114, 144, 148, 150, 162, 169, 184, 279–280, 284, 361 International Court of Justice 146 International Covenant on Civil and Political Rights (iccpr) 25–26, 47, 49, 72, 122–137, 214, 447–448 International Criminal Court (icc) 96, 196, 200 International criminal law 17, 108, 124, 161, 169, 176, 443n186, 454n252 International human rights law 1–26, 29, 31, 36–39, 41, 51, 58, 66, 73, 78–79, 84, 98, 104–118, 142, 160, 164–165, 176, 212, 216–217, 281, 364–365, 392, 402, 410, 421, 442, 451, 454n252, 508 International humanitarian law 17, 102, 104–108, 161 Interpretation 76–77, 89 Irrationality challenge 462 Inquest and inquiry procedures 18, 74, 100, 132, 147, 148, 153, 156–157, 163–164, 168, 187, 213, 245, 247, 254–258, 293, 296, 298–299, 304, 306, 312, 360, 489 Inquisitorial criminal justice system 67–68, 70 Investigating judge 155, 289, 302, 321, 472, 482, 489–491 Judicial review 473–477, 480–481, 483–484, 495–500 Juridical construction: logical and conceptual, substantive or criterial 367–386, 505 Jurisdiction 1, 9, 11, 21–22, 30, 37, 44, 83, 97, 100, 101, 103, 105, 108, 111, 113–117, 120–122, 127–128, 135–139, 144–152, 161–162, 166–169, 171, 175, 178, 188, 190, 199, 209–211, 213, 219, 231, 240, 247, 250, 255–258, 260, 267, 269–287, 328, 344, 360–361, 369, 370, 373–374, 394, 448, 452, 469, 490, 495, 508

577

Index Just resolution 429–432, 441, 456, 459–460 Kant, I. 57 Killings 20, 58, 73, 75, 109, 124, 126, 128, 131–132, 136, 186, 191, 193, 197, 219–223, 234, 238, 252, 253–255, 276–277, 286, 290–294, 298, 305–306, 308, 312, 320, 346, 350, 352, 357, 371–372, 391, 420, 475, 492, 494 Kremnitzer, M. 58 Language 176, 204, 206, 397 Lavrysen, L. 43–44 Leach, F. 244 Legislative framework 10, 30, 33, 38, 101, 144, 171, 187, 226, 229–230, 232, 337, 344, 378, 459 Lelieur, J. 451–452 Liberty 1, 21, 47, 75, 85, 88, 94, 98, 109, 118, 126, 134, 135, 160, 201, 203, 210, 330–333, 358–359, 412–413, 421 Limits of rights 436, 438, 441 Madelaine, C. 78 Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions 98–100, 184 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 156, 195 Martin, C. 173 McArthur, E. 137, 139–147, 149–158 McHarg, A. 413 Medical examination 154, 219, 318, 153 Medical negligence See negligence Medical records 132 Methodology 15–27, 413 Michel-Luviano, V. 466 Milanović, M. 281–283 Military justice 267–269 Minority Rights 136–137 Morss, J.R. 35 Ne bis in idem 169, 180–181, 425, 441–457 Ne eat judex ef officio 467 Negative obligations 40–42, 332

Negligence 21, 133, 177, 182, 214, 232–235, 242–243, 248–250, 252–253, 264, 273, 296, 310, 325, 336, 342–343, 357, 359–360, 457, 487 Nemo debet bis vexari pro une et eadem causa 444 Nemo judex sine actore 467 Non-exhaustion of domestic remedies 130, 265, 484, 498 Non-prosecution decision 157, 266, 400, 406 Non-refoulement 224, 372 Nowak, M. 125, 135, 137, 139–158 Operational efficiency 499–500 Optimisation 5–6, 434–459, 462–463, 499–501, 505–506, 509 Pardon 97, 158, 263, 401, 425 Participatory victims’ rights 13, 94–95, 100, 107, 111, 113, 116, 118, 205–207, 209, 216, 383, 384, 469 See also victim Partie civile 206, 267, 466, 470–472, 489–491, 501–502 Passive personality principle 116, 117, 120, 145, 151, 167–168, 272, 276, 278–279, 361 Plea bargaining 393n15, 494 Police ill-treatment 74, 80, 128, 182, 262, 290, 317–319, 322, 324–325, 484, 488 Positive obligations 29, 35–48, 50–51, 78–79, 88–91, 138, 140, 171, 175, 178, 185, 190–191, 212, 215, 226, 229, 232–233, 239–241, 269, 271, 282, 321, 326–327, 332, 335–336, 342–343, 336–337 Practical concordance 439–440 Practical legal reasoning 364 Prescription 179, 182, 260, 340, 353, 356, 391, 425–426, 449, 451–452, 457, 487 Primacy of the rights of the accused 422, 424 Principle of expediency 149, 169, 390, 398–406, 420, 468–473, 482, 498, 500 Principle of mandatory prosecution (principle of legality) 398–399, 402–406, 418–419, 468–469, 472–473, 477, 500 Principles on impunity 102–104 Principles on the Investigation of Summary Executions 98–100, 212

578 Private life / privacy 71, 85, 107, 118, 182, 197, 207, 332–342, 366–367, 375 Private parties 37–40, 42–43, 50, 52, 108–109, 135, 143, 160–161, 174, 201, 215, 234, 238, 240–241, 254, 267, 272, 279, 344, 357, 359–361, 365, 423, 486, 505 Private prosecution model 340–342, 464–472, 484–491 Proceduralisation 29–36, 504 Procedural justice 33–35, 69, 104, 178 Procedural obligation 2–3, 11, 14–17, 29–91, 133–134, 178, 191, 212, 217–218, 364–367, 382, 387, 434, 483, 499, 508 Procedural optimisation See optimisation Prohibition of discrimination See discrimination Prohibition of Torture See torture, inhuman or degrading treatment or punishment Prohibition of Slavery and Forced Labour 75, 217, 278, 279, 326–329, 413 Promptness 134, 148, 151–152, 155–156, 166, 195–196, 304–310, 313, 328–3230, 337–338, 341–342, 353, 362, 372, 374, 488, 50, 93–95, 97, 100, 103, 105–106, 110119, 123, 127–129, 134 Property 20, 21, 71, 177, 192, 201, 203, 218, 238, 354–356, 359, 403, 413, 468 Prosecution 1–6, 9, 14, 46, 54–55, 71, 93, 95, 96, 101–103, 105–107, 110, 124, 138, 141, 147, 149–150, 159, 169, 180, 201–202, 204, 260, 264–267, 340–342, 376, 389–392, 416–418, 420, 460–463, 464–472, 484–491, 504 See also charging process(es), private prosecution Prosecutorial discretion 127–128, 147–149, 389–421, 474, 480, 496, 498, 506 Protection of property See property Protocol No. 1 See property Protocol No. 7 See ne bis in idem Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United

Index Nations Convention against Transnational Organised Crime 280, 327 Public conception of justice 428 Public interest 2–4, 12–13, 60, 71, 107–108, 211, 233, 298, 300, 380–383, 390, 392, 400–421, 427n135, 432, 440, 452, 454–456, 461, 465, 470, 472, 501, 504–505 Public prosecution 4n14, 341, 466, 467–469, 470–475, 478, 480–481, 487 Public scrutiny 110, 297–301, 303, 362 Punishment 2, 5, 12, 16, 33, 47–48, 53–65, 92, 96, 98, 103, 105, 109, 111, 114, 133, 137–143, 151, 153, 156–158, 161, 163–164, 172–173, 179–181, 184, 186–189, 210, 216, 221, 229–230, 235–236, 238–239, 241–242, 253–254, 263–264, 325, 327–329, 339, 363, 371, 401, 421, 442, 444, 447, 452, 454, 486 Quasi-criminal jurisdiction 369–370, 373–374, 394 Rabiller, S. 78 Radiation effect 38 Rawls, J. 33–34, 428–429 Recommendation Rec(91)11 of the Committee of Ministers to member states concerning sexual exploitation, pornography and prostitution of, and trafficking in, children and young adults 111, 116 Recommendation No. R (2000) 11 of the Committee of Ministers to member states on action against trafficking in human beings for the purpose of sexual exploitation 112–115 Recommendation Rec(85)11 of the Committee of Ministers on the position of the victim in the framework of criminal law and procedure 107–108 Recommendation Rec(2001)16 of the Committee of Ministers to member states on the protection of children against sexual exploitation 113–114 Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence 118

Index Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system 480–481, 489, 502 Recommendation 1582 (2002) of the Parliamentary Assembly on domestic violence against women 118 Reconstruction 131, 320–321, 363 Remedy 32, 36, 43, 48–73, 75, 77, 79, 83, 85–88, 95, 106, 122–133, 137, 151, 157, 162, 164–166, 170, 177–178, 190, 192–193, 204, 210, 212, 214–215, 233, 242, 251, 256, 266–267, 323, 354, 356, 259, 376, 382, 417, 462, 477, 484, 486, 495–498, 501, 503 Res judicata 181, 425, 446, 451–452, 454 Resolution on trafficking in human beings of the European Parliament 208 Restitutio in integrum 185–186 Restorative justice 48, 54, 61–65, 203, 207 Retribution 48, 53, 54, 56–60, 65–66 Review model 6, 472–482, 491–503, 508 Ricoeur, P. 34 Right-claim to effective application of criminallaw mechanisms 5–6, 286, 378–384, 387–388, 396, 410, 426–430, 433–435, 438–443, 455–459, 462–464, 479, 483, 485, 492, 503, 505–509 Right to liberty and security See liberty and security of person Right to life 45, 58, 73–74, 77, 84, 88, 98, 109, 118, 121, 127, 130–133, 136, 160, 194–195, 198, 203, 214, 216, 218–235, 286, 313, 346, 348, 357, 359, 413, 421, 433 Right to respect for private and family life See private life, family life, home, correspondence Rodríguez-Pinzón, D. 173 Roht-Arriaza, N. 94 Rome Statute of the International Criminal Court 96 Rule of law 31, 34, 58, 73, 82, 101, 108, 221, 227, 259, 297, 300, 304, 311, 330, 362, 408, 429, 461, 492 Search 85, 129, 147, 222, 237, 316, 335, 366 Security of person 134–136, 198, 214, 413, Sexual abuse 21, 37, 45, 110–118, 210, 216, 238, 372, 334, 337–338, 358, 383

579 Slavery 75, 102, 109, 196, 217, 278–279, 282, 326–329, 358, 413, 102, 109 Shaver, D. 280 Shelton, D. 42, 48, 51, 56 Shield function of human rights 7, 9, 11, 504 Social contract 34, 441n180 Soft enforcement 24–26, 214–215 Soft law 22–27, 212–215 State agent authority and control 270, 272, 274, 276 State crime 176 Strasser, W. 79–80, 83 Structure of criminal process 1–4, 6–8, 383–384, 386, 426, 429, 433–438, 441, 443, 459 See also criminal procedure / process Subsidiarity 39, 80 Subsidiary / substitute prosecution 205, 325, 341, 466–469, 472, 484–503 Suicide 99, 227, 229–230, 291–292, 294, 312, 321–322, 357 Supreme Court 261, 374, 384–385 Suspicious death 75, 79, 131, 225, 228–230, 234–235, 248, 264, 267–268, 278, 290, 294, 312, 318, 322, 372, 475, 489, 491 Sword function of human rights 7, 11, 15, 202, 366, 505 Symmetry of criminal process 423, 433, 436–439, 443, 456, 458–463 See also criminal procedure / process, structure of criminal process Tardu, M. 139 Taxil, B. 161, 165 Territoriality principle 116–117, 120, 122, 144–146, 150, 167–168, 209–211, 269–270, 272, 281, 361 Terrorism 120–122, 176, 200, 202–203, 211, 213, 216, 218, 220, 222, 254, 297, 300, 305, 312, 315, 320, 331 Torture 20, 56, 68, 74, 80, 92–93, 101–102, 109, 118, 124–129, 132–134, 137–161, 177, 179, 181, 186, 195–196, 198–199, 210, 212, 214, 217–219, 236–237, 239–240, 253, 262, 346, 357, 359, 375, 390, 413, 421, 433, 458 Transformation of human rights 3 Transitional justice 65

580

Index

Transnational criminal justice 115, 167–168, 200, 209, 269–287, 328, 361, 442–443, 448, 452, 455 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community 199–200 Trump cards 431, 441 Truth 35, 65–72, 102, 158, 162–165, 170, 184, 187, 215, 300, 451, 473 Truth commissions 66, 163–164, 168 Tulkens, F. 7, 17, 81, 84, 440

408–409, 422–423, 426, 436, 443, 456, 463, 468, 470, 480–482, 483–484, 499–503, 506–508 See also functional victims’ rights, participatory victims’ rights Victim-oriented procedures 14 Victims Directive 202–212, 481–482, 502 Vienna Convention on the Law of Treaties 76 Vienna Declaration 101–102 Voyame, J. 139

Ubis jus, ibi remedium 48 un Committee on Missing Persons 256 un Declaration on Torture 92–93, 139, 142, 212 un Office for Drug Control and Crime Prevention 95 Universal Declaration of Human Rights 49, 98, 101 Universality 101, 145–146, 149, 272, 274, 272, 282, 361 Utilitarianism 428

Waldron, J. 431 Weighing 397, 406, 409–421, 435, 462 Weinrib, E. 61 Well-being 367, 375, 383, 431, 452, 505 Wenar, L. 376–378 Witness 68, 80, 99–100, 132, 147, 152, 156, 202, 205, 237–238, 244, 254–256, 259–260, 278–279, 288, 290, 299–301, 304, 312–315, 324–326, 328, 332, 337, 350, 353, 356, 363, 374–375, 385, 389, 406, 475, 480, 488

Vander Beken, T. 285 Vervaele, J. 452, 454 Victim 1–6, 8, 12–13, 18, 31–32, 56–66, 76, 84–86, 93–95, 99–102, 104–108, 120, 125, 137, 160, 166, 172–175, 191, 213–216, 261, 296–304, 362, 383–388, 402–403,

Xenos, D. 39, 41, 43, 50, 416 Zappalà, S. 422, 424 Zucca, L. 440 Zwaak, L. 280