Amicus Curiae de "The International Commission of Jurists".
Prepared by Daniel
10 June 1987
Statement of the problem
The relation between Art.8 and non-derogable provisions of the American Convention in general
The relation between the due process guarantees recognized in Art. 8 and the right to life
The relation between due process guarantees and the prohibition of torture and ill-treatment
The Drafting History of Art.27.2
The derogability of Art.8 pursuant to the provision of Art.27.1 prohibiting derogations incompatible with "other obligations in international law"
The derogability of the due process guarantees recognized by art. 8 of the American Convention under the strict necessity clause of Art.27.1
The legitimacy of derogation from Art.8 in light of the temporary nature of emergency measures
1. The question presented
by the Government of Uruguay in request for an advisory opinio No.9 is of
profound significance. In 1963 the Inter American Commission of Human Rights,
in what appears to be the first empirical study of states of exception ever
realized, concluded that more than a hundred states of emergency had been
declared in the member states of the OAS during the preceding decade. Writing
in 1981 the present Special Rapporteur of the United Nations on states of
emergency, Dr. Leandro Despouy, observed that "practically two-thirds
of the Latin American countries today live in a state of emergency" .
States of emergency are not a peculiarly Latin American phenomenon, of course.
In a comparative study on states of emergency published by the International
Commission of Jurists, which included chapters studies on states of emergency
in Asia, Africa, the Middle East, North America, and Eastern and Western Europe,
the present author stated that "it is probably no exaggeration to say
that at any given time in recent history a considerable part of humanity has
been living under a state of emergency" .
2. What is more, the consequences of states of emergency for the enjoyment of human rights are tend to be extremely broad. Of the twenty-three articles of the American Convention which recognize substantive individual rights, more than half are in principle subject to derogation by reason of a state of emergency, including those which protect the right to personal liberty, privacy, property and freedom of movement; the right to a fair trial, to equal protection of the law, to a judicial remedy for violation of one's rights and to compensation for unlawful imprisonment, and freedom of thought, expression, assembly and association. States of emergency often have devastating effects on non-derogable rights as well, including such fundamental rights as the right to life and freedom from torture, as we shall see. As Prof. Claudio Grossman has rightly observed "Las situaciones de excepción o de emergencia y el papel que el derecho puede jugar en su regulación, son de fundamental importancia en el Hemisferio, tanto por la frecuencia con la cual los Estados han recurrido a ellos, como por los peligros de abuso de derechos humanos que encierran. En efecto, la mera declaración de situaciones de excepción ha llegado a ser una mala noticia para todos aquellos que se preocupan del cumplimiento de los derechos humanos. Normalmente las situaciones de emergencia van acompañadas de desapariciones, ejecuciones sumarias, detenciones sin debido proceso, torturas y otros tratamientos crueles, degradantes e inhumanos" .
3. For these reasons, the present request for an advisory opinion may be considered one of the most momentous yet to be considered by this honorable Court.
4. The request for an advisory opinion presented by the government of Uruguay calls for an interpretation of the content of the "essential judicial guarantees" clause of Art.27.2 of the American Convention in general, with special reference to Articles 8 and 25 of the Convention. The request thus concerns both the due process rights of defendants in criminal prosecutions and the right of every person to a remedy for violation of his or her rights under national law and under the Convention. Respect for the right of access to independent and impartial courts in all matters, in particular the competence of civilian courts over allegations of human rights violations by security personal, is essential for the prevention of any abuse of states of emergency, including the abuse of the non-derogable rights enumerated Art.27.2. Nevertheless, practical considerations preclude analyzing of this aspect of the request for an advisory opinion in the present Amicus Curiae brief, which addresses only the question of derogation of the right to a fair trial in criminal matters.
Statement of the problem
5. The right of governments
to derogate from formally ratified obligations concerning human rights is
recognized by most human rights treaties designed to protect the full gamut
of essential civil and political rights, including the European Convention
for The Protection of Human Rights and Fundamental Freedoms, the International
Convention on Civil and Political Rights and the American Convention on Human
Rights or "Pact of San José", and is strictly delimited by all of
these instruments. The first United Nations Special Rapporteur on States of
Emergency, Mdm. Nicole Questiaux, identified four limitations common to all
of the instruments mentioned: the principle of exceptional threat, the principle
of proportionality, the principle of non-discrimination, the principle of
the inalienability of certain fundamental rights .
6. The American Convention contains an important limitation on the right of derogation not recognized in either the European Convention nor the International Covenant, namely, the clause of Art. 27(2) which prohibits any derogation from the "judicial guarantees essential for the protection of such rights", that is, the articles of the Convention classified as non-derogable, which refer to the right to legal personality, to personal integrity and humane treatment, the prohibition of slavery and ex post facto laws, freedom of conscience and religion, the rights of the family and the child, the right to a name and a nationality, and the right to participate in the electoral process and public service. It is this limitation which is the subject of the present request for an advisory opinion.
7. An obvious difficulty arises in recognizing the due process guarantees consagrated in Art. 8 as being necessary for the protection of a non-derogable right, and therefore non-derogable themselves, since the principal right at stake in criminal prosecutions, the right to personal liberty, is not among the rights classified by the Convention as non-derogable. Nevertheless, there are strong reasons for the honorable Court to declare that all or part of Art. 8 should be considered non-derogable.
The relation between Art.8 and non-derogable provisions of the American Convention in general
8. While personal
liberty is unquestionably the main right affected by prosecution and imprisonment,
it is not the only one. Indeed, it could be said that imprisonment adversely
affects almost all the fundamental rights and freedoms of the prisoner to
some extent. Among the non-derogable rights most directly affected by imprisonment
are the rights of the family, the right to participate in the political process
and the right to legal personality. In this sense the due process rights consecrated
in Art.8 are similar to the right to habeas corpus which, as the Court recognized
in Advisory Opinion OC-8/87, "are necessary for the protection of various
rights whose derogation is prohibited by Art.27.2", even though the main
function of the guarantee of habeas corpus is the protection of personal liberty
9. The purpose of Article 27(2) of the Convention is not only to limit the "suspension" of rights in the most literal sense, such as by means of decrees which declare that certain articles of the constitution are temporarily not applicable or not enforceable, but rather to assure to every person the effective protection and enjoyment of those rights classified as non-derogable. On more than one occasion international authorities charted with the protection of human rights have observed that the de facto violations of non-derogable rights which occur during states of exception are at least as widespread and serious as the de jure violations of the same rights. Therefore, since criminal convictions adversely affect the right of prisoners to enjoy the benefit of the non-derogable rights mentioned above, the due process guarantees enumerated in Art.8 may be necessary to protect the enjoyment of such rights even though the question of the "suspension" of these such rights in general terms does not arise.
10. In addition, experience has proven shown that the formal legal recognition of some non-derogable rights is nearly meaningless without adequate protection against arbitrary imprisonment. This is particularly true in the case of freedom of conscience and religion and the political rights recognized by Art.23 of the Convention. The right to participate in elections, for example, although formally in force, can be vitiated by the imprisonment of political leaders or candidates on grounds which tribunal respecting the minimum guarantees of the right to a fair trial. For this reason the International Labour Organization has insisted on respect for the right of imprisoned trade unionists to a fair trial even during states of emergency, as we shall see below.
The relation between the due process guarantees recognized in Art. 8 and the right to life
11. Article 4.2 of
the American Convention regulates the circumstances in which the capitol punishment
may be imposed in countries which have not abolished the death penalty, as
do subsequent paragraphs of the same article. Paragraph 2 expressly incorporates
into Article 4 three guarantees of due process which must be respected in
any trial in which the death penalty may be applied, namely, the right to
be tried by a competent court, the right to appeal, implicit in the expression
"final judgment", and freedom from ex post facto laws. Since Article
4 may not be derogated from, these guarantees must be fully respected even
during a legitimate state of emergency in trials for crimes punishable by
the death penalty.
12. Art. 4 of the American Convention does not contain a clause comparable to that which appears in Art.6.2 of the International Covenant, which states that the death penalty may only be imposed "in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant". This clause incorporates into the non-derogable Article 6 of the Covenant all the due process guarantees enumerated in Art.14 of the same instrument, as well as barring the imposition of the death penalty for acts protected by other derogable provisions of the Covenant, notably public liberties such as the freedom o expression and association. The United Nations Special Relator on Summary and Arbitrary Executions, Mr. A. Wako, has stated that "The term 'arbitrary' in Article 6.1 of the Covenant coupled with the provision in Article 6.2 that the sentence of death may not be imposed 'contrary to the provisions of this Covenant', can be interpreted to mean that the procedural safeguards of Article 14 cannot be derogated from even during public emergency in cases where a death penalty can be imposed" .
13. This omission is less significant than it appears because the prohibition of arbitrary deprivation of life, also recognized in Art.4.1 of the Convention, applies equally to judicial and extra judicial executions. This principle has been recognized not only by the Art. 4.1 of the American and the corresponding provision of the International Covenant, but also by instruments which have come to be recognized as part of customary international law, such as Art. 3 of the Universal Declaration of Human Rights and Art.I of the American Declaration of the Rights and Duties of Man. The UN Special Rapporteur on Summary or Arbitrary Executions has also declared that the very definition of summary or arbitrary executions includes the imposition of the death penalty "in trials in which the due process of law, in particular the minimum procedural guarantees as set out in Article 14 of the Covenant, are either curtailed, distorted or not followed"
14. Support for this interpretation may be found in the definition of the term "arbitrary" adopted by the committee of the UN Commission on Human Rights which prepared the influential Study of the right of everyone to be free from arbitrary arrest, detention and exile, published in 1964. The study states that:
In the light of the travaux preparatoire of article 9 of the Universal Declaration and article 9 of the draft Covenant on Civil and Political Rights and in the light of the discussions on the term "arbitrary" at the Baguio City and Santiago seminars, the Committee has come to the opinion that "arbitrary" is not synonymous with "legal" and that the former signifies more than the latter. It seems clear that, while an illegal arrest or detention is almost always arbitrary, an arrest or detention which is in accordance with the law may nevertheless be arbitrary. The Committee therefore ... has adopted the following definition: an arrest is arbitrary if it is (a) on grounds or in accordance with procedures other than those established by law, or (b) under the provisions of a law the purpose of which is incompatible with respect for the right to liberty and security of the person" .
15. The preceding definition of the concept of arbitrariness, applied to the privation of life, clearly supports the interpretation that a judicial execution is arbitrary if imposed without compliance with the judicial guarantees designed to protect the individual against arbitrary convictions, that is, the guarantees enumerated in Art. 8 of the American Convention. Moreover, since 1984 the inquiries sent by the Special Rapporteur to the Governments concerning persons sentenced to the death penalty have concluded with the phrase "I should like to emphasize the primacy of the right to life and to appeal to your Excellency on a purely humanitarian basis to ensure that no executions take place, especially if such executions result from a summary trial or any other procedure in which the rights of the individuals are not fully protected. In this connection may I draw your Excellency's attention to Articles 3, 10 and 11 of the Universal Declaration of Human Rights and to Articles 6 and 14 of the International covenant of Civil and Political rights" . Thus far the governments which have received such appeals have not rejected or challenged the suggestion that the imposition of the death penalty by reason of trials in which Art. 14 of the Covenant is not respected integrally are incompatible with the right to life, including the ten or more countries which at the relevant time were not States Parties in the International Covenant . This constitutes evidence of State practice supporting the interpretation that the deprivation of life without full respect for the due process guarantees recognized by international human rights treaties constitutes a violation of a norm of customary international law, namely, the inherent right of every person not to be deprived of his or her life arbitrarily.
The relation between due process guarantees and the prohibition of torture and ill-treatment
16. Certain of the
rights recognized in Art. 8 are directly related to the prevention against
torture and ill-treatment, practices absolutely prohibited by the American
Convention, the European Convention, and the International covenant on Civil
and Political rights as well as other pertinent international instruments
. The guarantees most closely linked to the prevention of torture are the
right to communicate freely and in confidence with counsel of his choice,
recognized in Art. 8.2.d; the right not to be compelled to plead guilty or
give incriminating testimony, recognized by art.8.2.g, and the rule that confessions
which are the product of coercion shall be invalid, which figures in Art.8.3
of the Convention.
17. The importance of these guarantees in the protection against torture has been emphasized by a number of international bodies, among them the Inter American Commission on Human Rights, the Human Rights Committee, and the UN Special Rapporteur on Torture. With regard to the right of access to a lawyer, the Inter American Commission, with extensive experience in the investigation and examination of cases of torture, has concluded that detention incommunicado "creates an atmosphere conducive to other illegal practices, particularly torture" . On another occasion, the Inter American Commission made the following comment on the relation between due process guarantees and the prevention of torture and mistreatment of prisoners:
In conformity with the principle of the presumption of innocence, the Commission recommends that the statements of self-incrimination made by the accused be taken in the presence of a judge and a defense attorney in accordance with the law that governs criminal proceedings... By taking measures to assure that all confessions are taken in conformity with the law, the Government would reduce the risk of the occurrence of mistreatment during the interrogation process" .
18. In General Comment on Art. 7 of the International Covenant on Civil and Political Rights, the Human Rights Committee, which also has considerable experience in examining cases of torture, observed that "Among the safeguards which may make control [of torture] effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees [and] provisions making confessions of other evidence obtained through torture of other treatment contrary to article 7 inadmissible in court..." . In its' Comment on Art.14 of the Covenant, the equivalent of Art. 8 of the American Convention, the Committee also declared the following:
Subparagraph 3(g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be born in mind. In order to compel the accused to confess or testify against himself frequently methods which violate these provisions are used. The law should provide that evidence acquired by means of such methods or any other form of compulsion is wholly unacceptable .
19. The UN Special Rapporteur on Torture, Mr. P. Kooijmans, stated in his first report that "The practice of torture is in most cases preceded by violation of other rights, especially the rights of those arrested, detained, accused and convicted" . He added that:
States of Emergency, as described above, legalize detention without sufficient safeguards to protect the rights of detainees, thus providing less control over their treatment, not only institutionally but also psychologically. The existence of acute internal conflicts - division of the nation between those who hold power and those who are ruled, between the majority and the minority, etc. - enhances the psychological justification of harsh treatment of the perceived 'enemy'. It is not therefore surprising that a large number of allegations of torture have been made in such situations .
20. In light of these observations concerning the relationship between the violation of due process rights and torture, and in particular the violation of due process rights during states of emergency, the Special Rapporteur recommends that all legal systems should prohibit the admissibility of evidence obtained under torture, recognize the right of every detainee to consult with a lawyer of his choice, if necessary immediately after a period of detention incommunicado which in no event should exceed seven days, and that the remedies of habeas corpus or amparo should be "strictly respected in all circumstances and should never be suspended"
The Drafting History of Art.27.2
21. In 1968, one year before the adoption of the American Convention on Human Rights by the Inter American Specialized Conference of Human Rights, celebrated in San Jose, Costa Rica, the Inter American Commission adopted an important resolution on states of emergency, which declares in part the following:
That the suspension of constitutional guarantees or 'state of seige' is compatible with the system of democratic representative government only if enacted under the following conditions: ...
e. When it does not in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention, the right to due process of law, and the right to freedom of thought, conscience and religion" .
22. This solemn declaration
of the Commission was adopted after more than five years of study of states
of exception from the point of view of comparative constitutional law and
the historically demonstrated effects of states of emergency on the enjoyment
of human rights, which resulted in three valuable studies, the first prepared
by the Secretariat of the Inter American Commission and two others prepared
by Dr. Daniel Hugo Martins, member of the Commission who was appointed rapporteur
on this question .
23. The first draft Convention prepared by the Inter American Council of Jurists, classified only four rights as non-derogable, the right to life and freedom from torture, slavery and ex post facto criminal laws , following the rather conservative position adopted in the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, adopted almost two decades earlier in a continent characterized by a relatively greater degree of political and social stability. The OAS Council requested the Inter American commission of Human Rights to evaluate the draft Convention prepared by the Council of Jurists, and the Commission suggested that the draft article concerning derogation be amended in the light of the above mentioned declaration and studies on the states of emergencies . Consequently, the final draft submitted to the San Jose Conference by the Council of the OAS proposed that derogation from the right to a fair trial and freedom from arbitrary detention be prohibited, in addition to the rights mentioned in the draft of the Inter American Council of Jurists .
24. The list of non-derogable rights proved to be controversial, with the representative of one country formally proposing the complete elimination of the present Art. 27(2) of the Convention . After this proposal was voted upon and defeated, a working group composed of representatives of five countries was appointed in an attempt to reach agreement on which rights should be considered non-derogable. The group was given fifteen minutes to reach its' conclusions and report back to Commission I of the Conference . The group recommended that the draft articles concerning freedom from arbitrary detention and right to due process, corresponding to Articles 7 and 8 of the present Convention, be excluded from Art.27.2, and added certain rights not contained in the draft, notably the right to participate in elections and the public service . One delegate proposed to the Commission that the present Articles 7 and 8 be restored to the paragraph in question, but the motion failed to carry .
25. What is significant for purposes of the issue that the honorable Court is called upon to decide today is the lack of any official record of the reasons for the decision to exclude articles 7 and 8 from the scope of Art.27(2). The record of the debate published by the OAS Secretariat in the volume entitled Conferencia Especializada Interamericana sobre Derechos Humanos contains no record of the report of the above-mentioned drafting group, apart from the text of the new draft art.27.2; the summary minutes of the debates of the Commission do not mention any explanation given by any delegate as to the reasons why his or her country favored the inclusion or exclusion of any specific right in Art.27.2, nor does the report of the Rapporteur of the Commission to the Plenary shed any light of the reasons for the modification of the draft submitted to the Conference . It appears that no debate on these modifications took place during the Plenary .
26. Since the travaux preparatoire of the Convention provide no explanation of the removal of Articles 7 and 8 from Art.27.7, various hypothesis are possible. One possible explanation, obviously, is that the governments felt it necessary to reserve the right to derogate from these rights during states of emergency, assuming of course that the other conditions set forth in Art.27.1 obtained. Another possible explanation is that it may have been felt that the conditions set forth in Art.27.1 or in the very "essential guarantees" clause which is the subject of the present request for an advisory opinion would provide sufficient protection for the guarantees spelt out in Art. 8, obviating the need for special protection of this Article against the eventuality of derogation. In the next section of the present brief, we shall argue that most if not all of the due process guarantees contained in Art. 8 should be considered non-derogable by reason of the limitations set forth in Art.27.1.
27. If this was the reason for the decision to eliminate Art.7 and 8 from draft Art.27(2), subsequent events have shown how grievously mistaken the Delegates to the Conference were. Even if derogation from such guarantees is legally impossible to reconcile with the principles set forth in Art.27.1, governments have tended to interpret Art.27(2) as a license to suspend the rights not mentioned therein, and international supervisory mechanisms have not proven equal to the task of judging the legitimacy of emergency measures in a timely fashion and taking effective measures to prevent their abuse. Indeed, when declaring a state of emergency there is a tendency on the part of some governments to suspend the enforceability of all the rights classified by the international instruments as derogable, in complete disregard for the principle of 'strict necessity' .
28. In order to provide adequate protection for the rights of the individual during states of exception - precisely the time when greatest vigilance is required - a preventive approach is needed, with the competent international bodies giving governments greater guidance as to what types of measures may or may not be acceptable, according to existing international norms, during legitimate states of emergency . The honorable Court has made a major contribution to the doctrine on this question in Advisory Opinion on Habeas Corpus under the Suspension of Guarantees, and the present request for an advisory opinion in effect invites the Court to expand further on this doctrine and make a new and equally valuable contribution to the prevention of the abuse of emergency powers.
The derogability of Art. 8 pursuant to the provision of Art.27.1 prohibiting derogations incompatible with "other obligations in international law"
29. As we have seen,
certain of the guarantees of due process set forth in art.8 of the American
Convention are necessary for the prevention of torture, and all of the guarantees
contained in Art. 8 are necessary to prevent the arbitrary deprivation of
life in prosecutions for capitol crimes. Additionally, the due process guarantees
are necessary to ensure that persons are not imprisoned under false charges
in order to mask persecution for activities or convictions protected by non-derogable
articles such as Article 13 or 23, and to protect the innocent prisoner against
violations of those non-derogable rights adversely affected by any prosecution
and imprisonment, such as the rights of the family.
30. The derogation of the guarantees set forth in Art. 8 is also incompatible with other limitations on derogation set forth in Art. 27 of the Covenant, including the provision that a State Party may take no measure in derogation of its' obligations under the Convention which would be "inconsistent with its other obligations under international law". This provision applies to obligations under customary international law as well as treaty obligations, in particular those defined in regional or international treaties concerning human rights.
31. The Geneva Conventions on Humanitarian Law are especially relevant in interpreting the significance of this particular provision of Art.27.1 for the guarantees recognized in art.8. "Common Article 3", incorporated in each of the four Geneva Conventions of 1949, provides in its first paragraph that "the any place whatsoever ... (d) the passing of sentences... without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples".
32. It may be asked whether the incorporation of Common Article 3 as a limitation on the emergency measures which may be taken under Art.27 of the Convention, by virtue of the "other international obligations" clause, is affected by the fact that the protection afforded by Common Article 3 could be considered conditional, in the sense that the Article comes into play in given circumstances, that is, during an armed conflict. Writing in 1970 the then Secretary-General of the International Commission of Jurists and subsequently Noble Peace prize laureate Sean MacBride first identified the need to avoid the existence of a gap between the protection afforded human rights by humanitarian law during armed conflicts and the protection afforded the same rights during normal times by international human rights treaties. The solution he envisaged was the following:
"... when a Government wishes to avoid its obligations under the normal provisions of the Law of Human Rights, it will have to take formally the stand that there exists a 'public state of emergency threatening the life of the nation': where a Government takes such a stand, it will be difficult for it to argue that the Geneva Conventions do not apply either in full or to the limited extent of Article 3"
33. The solution
foreseen by Dr. MacBride did not prove sufficient, since it is now recognized
that derogation may be justified by severe threats to the life of the national
which do not necessarily involve armed conflict . Nevertheless, the solution
he proposed serves to highlight an important fact, namely, that Common Article
3 is not designed to impose special safeguards appropriate only in situations
of armed conflict, but rather to preserve during times of armed conflict certain
essential safeguards which are presumed to exist in all "civilized"
nations not besieged by a conflict of this nature . Therefore, to interpret
Art.27 of the American Convention in such a way as to permit due process rights
of the accused to be suspended during an internal crisis not involving actual
armed conflict, when respect for at least some of the same guarantees would
have to be reinstated as soon as the conflict assumes the characteristics
of an internal armed conflict, would be an interpretation that could only
be considered as anomalous.
34. Mdm. Questiaux, first Special Rapporteur of the UN on states of emergency, has stated the following in this regard:
[I]t should likewise be noted that in time of war, and even in time of armed conflict not of an international character, article 3, which is common to the Geneva Conventions on the humanitarian law of war, prohibits 'at any time and in any place whatsoever' the infringement of a basic set of principles that are deemed to be inalienable, such as the prohibition of torture. This will apply a fortiori in the event of purely internal disorders. It would be paradoxical if the guarantees in peace-time were weaker than those in war-time". similarly, many national constitutions, as we shall see, embody a series of inalienable rights which are very similar to the list set forth in the international instruments, although they sometimes go further" .
35. In the Final
Recapitulation of the first Inter American Seminar on National Security, Human
Rights and Humanitarian Law Dr. Eduardo Jiménez de Arechega, former President
of the International Court of Justice and Relator of the Seminar, endorsed
this aspect of the Questiaux report, adding that "This argument is supported
in a passage of the decision the International Court of Justice in the Corfu
Channel case in which, after mentioning a treaty applicable in times of war
[the Court] adds that the same humanitarian considerations which inspire the
treaty are equally or even more valid in times of peace" .
36. It may also be asked whether the implications of the incorporation of Common Article 3 into the American Convention via the "other international obligations" clause of Art. 27.1 have validity as a generally applicable rule on the legitimacy of derogations, or whether its' implications are limited to those States Parties in the American Convention which are also Parties to the Geneva Conventions. At the present time the question is moot, since all the States Parties to the American Convention -and indeed all the Member States of the OAS save one- are States Parties in the Geneva Conventions . Moreover, as one authority has stated, "it is generally considered that the essential provisions of international humanitarian law - to which article 3 of the conventions clearly belongs - posses now the character of jus cogens and therefore are binding on all authorities claiming to exist in international law" . Hence the guarantees of criminal due process "recognized as indispensable by civilized peoples" are incorporated into the American Convention by the "other international obligations" clause not only as treaty provisions which may or may not have been ratified by the States Parties, but also as a peremptory norm of customary international law which can not be modified or suspended even by a posterior treaty provision in direct contradiction with it .
37. The content of the phrase "the judicial guarantees recognized as indispensable by civilized peoples" is not defined by the Geneva Conventions. However, Article 6.2 of Protocol II to the Geneva Conventions, adopted in 1977, states that "no sentence shall be passed and no penalty shall be executed on a person found guilty of an offense other than by decision of a Court offering the essential guarantees of independence and impartiality". Article 6.2 then proceeds to enumerate a series of due process guarantees which must be respected in time of 'non-international armed conflict', including the right to be informed in detail and without delay of the charges against him; the right to the means necessary for the preparation of a defense; the right not to be tried or sentenced under ex post facto laws, the presumption of innocence, the right to be present at the trial, and the right not to be compelled to plead guilty or to give self-incriminating testimony. These rights correspond to those recognized in paragraphs 1, 2, 2(b), 2(c), 2(g) and 2(h) of Art.8 of the American Convention. Article 6.3 of Protocol II also protects the right to appeal, which is recognized by Art.9 of the American Convention and figures among the non-derogable rights listed in Art.27.2.
38. The parallels which can be observed in the language of Article 6.2 of Protocol II and paragraph 1(d) of Common Article 3 of the Geneva Conventions suggests that the list of guarantees included in the Protocol should not be viewed as the creation of new contractual obligations, but rather the recognition of a consensus among the community of nations, consolidated during the interval between the adoption of the Conventions and the Protocol, as to the content of the phrase "judicial guarantees recognized as indispensable by civilized peoples" employed in the 1949 Conventions. If Article 6.2 is viewed as essentially interpretive of the "indispensable judicial guarantees" clause of Common Article 3, this confirms that the guarantees identified therein, which correspond to a considerable part of the guarantees protected by Art.8 of the Convention, are not subject to derogation by virtue of the "other international obligations" clause of Art.27.1.
39. The significance of Art.6 of Protocol II was analyzed in the Commentary to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights in the following terms:
As a purely contractual obligation, Article 6 of Protocol II ... has limited effect at present because of the low number of ratifications. However, Common Article 3 of the 1949 Conventions, which recognizes certain 'core' rights that must be respected in non-international conflict with regard to both civilians and combatants, has been ratified by 152 States Parties, making it the most widely ratified human rights norm in existence.
Common Article 3 requires inter alia that even during a civil war criminal prosecutions must be carried out by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples".
It would be difficult
to deny that any of the due process rights protected by Article 6(2) and (3)
of Protocolo II ... are not among the "indispensable judicial guarantees"
referred to in generic terms by Common Article 3. Thus one must conclude that
at least these seven rights are binding, by virtue of the "other international
obligations" clause, on all countries which are States Parties to both
the Covenant and the 1949 Geneva Conventions". .
40. When trade unionists are among those prosecuted, the suspension of due process guarantees may also violate the obligations of States under other international instruments. All the States Parties to the American Convention save one are parties to the Convention on Freedom of Association and Protection of the Right to Organize (No.87), the most important international instrument in the area of freedom of association, which contains no provision permitting derogation during states of emergency . Moreover, respect for trade union freedom is a constitutional precept of the International Labour Organization binding on all Member States, which include nearly all the Member States of the OAS .
41. An ILO study entitled Trade Union Rights and Their Relation to Civil Liberties stated the following:
To prevent arbitrary invasions of [individual] liberty and improper pressures, three main conditions must be fulfilled: the judiciary must be independent and impartial; any criminal charge should be tried without delay; and the procedure should be such as to guarantee a fair and impartial examination of both facts and legal issues.
The value of these
guarantees for the exercise of trade union rights is evident. Inability to
obtain a fair determination of legal disputes or of criminal charges would
open the way to arbitrary interference in an organization's affairs. In criminal
proceedings the liberty of the individual trade union officer or member may
be at stake, both before and upon sentence or member may be at stake, both
before and upon sentence. Where it is alleged - as frequently is the case
- that such persons have been prosecuted or detained not on account of legitimate
trade union activities but because of the commission of criminal offenses
distinct from those activities, the only conclusive manner of substantiating
that assertion is by a trial surrounded by all requisite procedural guarantees.
(emphasis added) .
42. A more recent report of the ILO Committee of Experts on the Application of Conventions and Recommendations summarizing its experience in examining complaints of violations of trade union rights draws the following conclusions regarding the relationship rights draws the following conclusions regarding the relationship between respect for due process guarantees and freedom of association:
While it is evident that trade unionists should not be arrested on account of normal trade union activities, the detention of trade unionists in any circumstances runs the risk of involving serious interference with the exercise of trade union rights if such measures are not accompanied by adequate judicial safeguards. It should be the policy of every government to ensure the observance of specific safeguards such as the principle that no one shall be subject to arbitrary arrest, detention or exile, the right of every person to be informed, at the time of the arrest, of the reason for his arrest and also to be informed of the charges against him, and the right of everyone charged with an offense to be presumed innocent until proved guilty according to the law in a public trial in which he has had all the guarantees necessary for his defense... In cases of preventive detention of trade unionists under special powers in times of emergency, such measures should be justified by the existence of a serious emergency and be accompanied by adequate judicial safeguards applied within a reasonable period" .
43. On numerous occasions
the Committee on Freedom of Association of the Governing Body of the ILO has
declared that the detention of trade unionists pursuant to states of emergency
without respect for the right to a fair trial violates freedom of association
as protected by Convention No. 87 and the ILO Constitution. The digest of
decisions of the Committee states that "The Committee, while refraining
from expressing an opinion the political aspects of a state of emergency,
has always emphasized that measures of detention must be accompanied by adequate
judicial safeguards applied within a reasonable period and that all detained
persons must receive a fair trial at the earliest possible moment" .
44. If the right of persons arrested in connection with an internal armed conflict or of trade unionists arrested during a state of emergency must be respected by the States Parties to the American Convention by reason of the "other international obligations" clause of Art.27.1, it would be anomalous to conclude that a lesser standard of protection could be applied to other persons charged with less serious offenses.
The derogability of the due process guarantees recognized by Art.8 of the American Convention under the strict necessity clause of Art. 27.1
45. Art.8 of the American Convention contains thirteen paragraphs and sub-paragraphs, in which recognizes some seventeen distinct guarantees applicable to criminal proceedings are recognized. Given the scope and number of the norms it contains, Art.8 could justifiably be called a "veritable Convention in miniature" . At the same time, for purposes of the International Law of Human Rights and interpretation of the Convention in particular, one might ask whether Art. 8 should be considered as one single fundamental right with a series of elements or a series of separate rights. In a recent study concerning a country not a Party to the Convention, the Inter American Commission on Human Rights stated that "the provisions of the Convention may be used to interpret various aspects of the rights protected generically by the American Declaration. With respect to the right to a fair trial and to due process, those rights are recognized by Article 8 of the American Convention on Human Rights" . Thus it could be argued that, since certain aspects of Art.8 have been shown to be indispensable for the protection of non-derogable rights, the right to a fair trial as a whole should be considered indispensable to this end. If this view were adopted, there would be no cause to examine individually the necessity of element of the right to a fair trial, that is, no need to evaluate separately the derogability of each specific provision of Art. 8. Inverting the question in order to ask which of the guarantees mentioned in Art.8 is not an indispensable element of the right to a fair trial reveals a persuasive argument for regarding the guarantees contained in Art.8 as mere aspects on a single right.
46. Without prejudice to the possibility of recognizing Art.8 as a whole as non-derogable, it may be appropriate consider the relation between specific provisions of Art.8 and the principle that no measure derogating from the obligations of a State Party to the Convention may be taken unless said measure is "strictly required by the exigencies of the situation" which threatens the independence or security of the nation, also recognized by Art. 27.1 of the Convention. It is submitted that suspension of most if not all of the guarantees mentioned in Art.8 can never be considered "strictly necessary" in any conceivable emergency, and that the accumulated experience of the unjustified denial of due process guarantees during states of emergency demonstrates the need to recognize the incompatibility of their suspension with international law prospectively, in order to help prevent this particular form of abuse of states of emergency in the future.
47. In exploring the relation between Art. 8 and the principle of strict necessity, the emphasis shall be placed on those aspects of Art.8 not analyzed in preceding parts of the present brief. As we have seen, right to communicate freely and in confidence with a lawyer of one's choice, the right not to be compelled to confess or to give self-incriminating testimony, and the exclusion of evidence obtained as a result of coercion are necessary to prevent torture, and derogation of the right to trial by a independent and impartial court, the right to be informed promptly and in detail of the charges pending, the right to the presumption of innocence, to be present at trial, to the means necessary for the preparation of a defense and to appeal a conviction are precluded by the "other international obligations" clause of Art. 27.1. These guarantees correspond to paragraphs 1, 2 and 3 of Art.8, as well as subparagraphs (b), (c), (d), (g) and (h) of paragraph 2. The provisions of Art. 8 not specifically covered by the above - mentioned principles include the right to be tried "within a reasonable time", recognized by Art. 8.1. the right to the assistance of an interpreter and to free legal assistance, if needed, the right to cross-examine prosecution witnesses and present defense witnesses, recognized by Art. 8.2, and the right not to be tried more than once for the same offense and to a public trial, recognized by paragraphs 4 and 5 of Art.8, respectively.
48. It is difficult to conceive of the need for derogation of the right to be tried "within a reasonable time" because of the inherent flexibility on the standard, that is, of the concept of reasonableness. Query what justifications could be advanced in support of the right of the State to try persons after an unreasonable delay. The right to a public trial also may be limited "in so far as may be necessary to protect the interests of justice", according to Art. 8.5 of the Convention, which raises the question of what exceptions to the right to a public trial could possibly be necessary or desirable, other than those "in the interest of justice".
49. The right of persons who do not understand the language of the Court to the assistance of an interpreter or translator is so fundamental that it is obviously an inherent component of the right to a fair trial. If the accused can not understand the language used in the proceedings, and consequently is completely precluded from participating in the trial, there is little point in ensuring that any other guarantees of due process will be respected.
50. Derogation of the right to free legal assistance during a state of exception is difficult to reconcile with the principle of strict necessity, in the first instance because the events which justify states of exception seldom have a direct impact on the ability of the State to provide or arrange for free legal assistance when the interests of justice so require. In addition, given that the right to a lawyer as such is non-derogable, the limitation of this right to those who can afford to pay can be considered a form of discrimination on the basis of economic status incompatible with Art.1 of the Convention.
51. As was stated in States of Emergency: Their Effects on Human Rights, an empirical study of states of emergency throughout the world, "there is no plausible reason for suspending the right of a defendant to obtain the attendance and examination of witnesses on his behalf. Similarly, no convincing explanation has ever been advanced for derogating, during a state of emergency, from the right of a person finally acquitted or convicted not to be tried or punished again for the same offense" .
52. In light of the above, the only element of the right to a fair trial whose justification might conceivably be considered necessary during a legitimate state of emergency would be the right to examine prosecution witnesses, one of the two elements of the right to a fair trial recognized by Art.8.2(f) of the Convention. As was stated in the above-mentioned study of the International Commission of Jurist, "the right to examine prosecution witnesses is sometimes derogated from because of a justifiable fear that terrorist organizations may take revenge against witnesses, or that this possibility will intimidate potential witnesses and prevent them from giving testimony". Even in the event that these circumstances should occur, the study of the International Commission of Jurists recommends that 'substitute' guarantees should be implemented, such as the testing of the credibility of the prosecution witness by the judge without the presence of the accused .
The legitimacy of derogation from Art. 8 in the light of the temporary nature of emergency measures
53. Art.27.1 of the American Convention permits States Parties to take measures derogating from their obligations under the Convention only to the extent and for the period of time strictly required by the exigencies of a situation which threatens the independence of the national (emphasis added). Emergency measures which would normally be incompatible with the fundamental rights recognized by the Covenant should, therefore, be of a temporary nature. A literal interpretation of the above-cited provision of Art.27.1 does not preclude derogation measures which, although in effect for only a short time, have permanent or lasting consequences. Nevertheless, it is clear that the intent of this limitation on derogation is to restore the individual to full enjoyment of his fundamental rights as soon as the threat to the national has passed, or been reduced to manageable dimensions. As Prof. Claudio Grossman has written, "En efecto, para que no se viole el requisito de temporalidad, no basta simplemente que se deje sin efecto una medida, sino que es necesario también que el gobierno respectivo restituya a las personas afectadas en el goce de sus derechos" . The Siracusa Principles also recognize this principle, stating the following:
On the termination of a derogation pursuant to Article 4 all fights and freedoms shall be restored in full. A review of the continuing consequences of derogation measures shall be made as soon as possible. Steps shall be taken to correct injustices and to compensate those who have suffered injustice during or in consequence of the derogation measures. (emphasis added) -
54. The Commentary
adds that "The other requirements [the underlined portion of the preceding
quotation] are based on the principle that no injury to a right shall be tolerated
by reason of a state of emergency unless it is strictly necessary. Strict
respect for this principle obliges a state, after the end of a state of emergency,
to take measures to identify injustices committed during it and where possible
to make reparations or undo continuing consequences of such injustices"
55. The imposition of criminal sentences has lasting consequences for the persons affected, evidently, and the imposition of sentences without full respect for the standards of due process recognized by Art.8 therefore involves a continuing infringement of the rights of the such individuals incompatible with the temporary nature of the emergency. The above-mentioned Commentary to the siracusa Principles suggests that, where an emergency has involved derogation of due process guarantees, "a review should be made of trials where due process guarantees", a review should be made of trials where due process guarantees were not in force in order to determine which prisoners should be released, pardoned or retried" . While this recommendation undoubtedly is valid for those countries where such trials have occurred, the possibility of offering this form of relief to victims of violations of the right to a fair trial does not obviate the conclusion that the imposition of sentences by courts where such guarantees are suspended is inherently contradictory with the temporary nature of states of emergency.
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