II Council of Europe
| Date | 01 June 1996 |
| Author | Leo Zwaak |
| DOI | 10.1177/092405199601400206 |
| Published date | 01 June 1996 |
| Subject Matter | Article |
NQHR
2/1996
pronounced against two military intelligence officers. The Committee held, however, that
in the event
of
particularly serious human rights violations purely disciplinary and
administrative remedies cannot be deemed to constitute adequate and effective remedies
within the meaning of Article 2(3) CCPR. The reasoning for this remarkable holding
seems, however, no to be free from contradictions. On the one hand, the Committee
reaffirmed its earlier jurisprudence that the Covenant does not provide a right for
individuals to require that the State criminally prosecute another person. On the other
hand, it nevertheless considered 'that the State party is under a duty to investigate
thoroughly alleged violations
of
human rights, and in particular forced disappearances of
persons and violations of the right to life, and to prosecute criminally,
try
and punish those
held responsible for such violations. This duty applies afortiori in cases in which the
perpetrators
of
such violations have been identified.' In fact, the Committee urged the
Government
of
Colombia 'to expedite the criminal proceedings leading to the prompt
prosecution and conviction
of
the persons responsible for the abduction, torture and death
of
Nydia Bautista.' Since this holding was pronounced in a final decision concerning an
individual communication the Committee, at least in cases of enforced disappearance
leading to the death of the disappeared person, in fact recognises that the right to an
effective remedy entails the obligation
of
the State Party to criminally prosecute and
punish the perpetrators. This legal opinion, following the landmark decision on impunity
in Hugo Rodriguez vs. Uruguay (see NOHR, Vol. 13,
No.2,
1995, p. 153), is in line with
the UN Declaration on the Protection
of
All Persons from Enforced Disappearance
of
18
December 1992 and in fact grants the family of a disappeared person an individual right
that the respondent State prosecute the perpetrator.
The two inadmissibility decisions involving the Netherlands concerned Dutch peace
activists who protested against the sale
of
weapons to other countries, such as Turkey. One
applicant had damaged an air force communication mast and was sentenced to 16 months'
imprisonment (No. 66011995), the other had damaged wire fences around military barracks
and was sentenced to two weeks' imprisonment (No. 65711995). Their claims that the
Dutch Government had violated Articles 6, 7, 14, 18 and 19
of
the Covenant were
dismissed as non-substantiated, and the Committee reiterated its earlier opinion (in the
Cruise Missile Case (No. 42911990), see NQHR, Vol. 11,
No.4,
1993, p. 470) that the
procedure laid down in the OP 'was not designed for conducting public debate over
matters
of
public policy'.
II COUNCIL OF EUROPE
Leo
Zwaak
On 28 February 1996, the Russian Federation became member to the Council
of
Europe
and on 24 April 1996, the Parlementary Assemby
of
the Council
of
Europe voted in
favour
of
Croatia, which will now be invited by the Committee of Ministers to become
member
of
the Council
of
Europe.
A. European
Court
of Human Rights
Article 5(4) ECHR: Right to take proceedings within a reasonable time.
21 February 1996, Hussein
and
Singh (United Kingdom). In 1978, Mr. Hussein, was
sentenced to be detained during Her Majesty's pleasure. The Parole Board considered
whether or not to recommend the applicant's release on four occasions. At the first review
186
Human Rights News
in 1986 the applicant had no opportunity to see the reports considered by the Parole Board
or to appear before it. At the second review in 1990 the Secretary
of
State rejected the
Parole Board's recommendation to transfer the applicant to open conditions. Again the
applicant did not see the reports before the Board and was not heard by the Board. He was
not given any reasons for the decisions taken. In 1992 the Parole Board's recommendation
that the applicant be transferred to open conditions was again rejected by the Secretary
of
State. The applicant was only informed
of
the decision in March 1993. The applicant then
applied for judicial review on the grounds that he had a right to disclosure
of
reports. The
application was withdrawn in October 1993 following the Parole Board's undertaking to
reconsider the case and to allow the applicant to see his file. In January 1994 the Secretary
of
State accepted the Parole Board's recommendation that the applicant be transferred to
open prison conditions. In 1973, the applicant Singh was sentenced to be detained during
Her Majesty's pleasure. He was released on licence in 1990. On 21 March 1991 the
applicant's licence was revoked by the Secretary
of
State on the recommendation
of
the
Parole Board. The Board considered that the applicant had lied to his supervising officers
and that the circumstances which had given rise to his arrest for several offences
of
fraud
and threatening behaviour showed that it was not feasible for him to be supervised in the
community. The Parole Board accepted representations from the applicant but did not
permit him to see various police and probation office reports. On 19 December 1991 the
Parole Board decided not to recommend his release. After the new criminal charges had
been dropped on technical grounds, the Parole Board reconsidered the case and reached
the same conclusion on 30 July 1992. Again the applicant was not shown relevant
documents. On 20 April 1993 the Divisional Court
of
the High Court quashed the Parole
Board's decision
of
19 December 1991 because
of
the failure to disclose all the documents
to the applicant. The Parole Board reconsidered the case, allowing the applicant to see the
reports and to make detailed submissions rebutting the allegations against him but without
holding an oral hearing. On 18 June 1993 the Parole Board, while accepting that the
applicant had satisfactorily explained some matters
of
concern, decided not to recommend
his release. In 1994 the Parole Board recommended that the applicant be released but on
21 July 1994 the Secretary
of
State informed the applicant that he had not accepted the
recommendation. Before the Court, the applicants complained about the manner in which
their tariff period had been established. Since their complaints in this regard were not
expressly declared admissible by the Commission and given the fact that the applicants'
tariff period had now elapsed, the Court considered that the scope
of
case before it should
be confined to issues related to the applicants' current situation, that is post-tariff
detention. The central issue before the Court was whether a sentence
of
detention during
Her Majesty's pleasure, given its nature and purpose, should be assimilated to a mandatory
life sentence or to a discretionary life sentence. The applicants had been sentenced to be
detained during Her Majesty's pleasure because
of
their young age. Their sentences
contained a fixed punitive period and an indeterminate term
of
detention, which could only
be justified by considerations based on the need to protect the public. These considerations
- centred on an assessment
of
the applicants' character and mental state - had
of
necessity
to take into account any developments in their personality and attitude as they grew older.
Otherwise, the applicants would be treated as having forfeited their liberty for the rest
of
(inhuman punishment). The applicants' sentences, after the expiry
of
their tariffs, therefore
were more comparable to discretionary life sentences than to mandatory life sentences in
that new issues
of
lawfulness might arise in the course
of
detention (or re-detention after
187
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