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3.
Right to Humane Treatment and Terrorism 201.
In the context of state responses to terrorist violence, the
above-mentioned guarantees governing the right to humane treatment are
particularly relevant in several potential situations, including the
treatment and interrogation of suspected terrorists during and after
their capture by state agents, and, as discussed in Part III(H), the
detention and removal of aliens, including women and children. 202.
As with other categories of human rights, where individuals fall
under the authority and control of the state in situations outside of
armed conflict, their treatment is governed exclusively by international
human rights law. Where an armed conflict is underway, however, the
treatment of detainees and others is also subject to international
humanitarian law. Further, in the context of international armed
conflicts, a preliminary issue arises concerning the status of detainees
under the 1949 Geneva Conventions, which has implications for the nature
of the treatment to which the individuals may be entitled, including in
particular distinct treatment to be afforded to prisoners of war and
civilians subject to internment.[506]
203.
Accordingly, when individuals have committed belligerent acts and
have fallen into the hands of the enemy in the context of an
international armed conflict and a doubt arises as to their entitlements
to prisoner of war status, a competent tribunal should determine the
status of the detainees.[507]
This is the case whether or not the individuals are suspected to have
engaged in acts of terrorism. Until the status of the detainees has been
determined by a competent tribunal, they should be afforded prisoner of
war status[508]
or a similar protection.[509]
204.
On this matter, it should be recalled that a prisoner of war is
immune from criminal prosecution under the domestic law of his captor
for his hostile acts that do not violate the laws and customs of war.
This immunity does not, however, extend to acts that transgress the
rules of international law applicable in armed conflict.[510]
205.
Notwithstanding the importance of ascertaining the status of
persons falling into the hands of an adversary in international armed
conflict situations, however, it is also significant to recognize that
the regimes of human rights law and of international humanitarian law
each provides for minimal and non-derogable requirements dealing with
the humane treatment of all persons held under the authority and control
of the state. While the humanitarian law protections governing
international armed conflicts in particular provide for a specific and
detailed lex specialis that
must inform the right to humane treatment of victims of such conflicts,
it is notable that many of the fundamental rules and principles under
this regime are similar to those applicable outside of international
armed conflicts, particularly with respect to the conditions under which
individuals may be detained and interrogated. A discussion of these
similar requirements and their corresponding sources under international
human rights and humanitarian law is provided below. 206.
Specifically with regard to conditions of detention, as
individuals may be detained either before any criminal charges have been
brought against them, untried prisoners should be kept separate from
convicted prisoners.[511]
In addition, men and women should be detained in separate institutions
or in separate parts of a same institution,[512]
and children should be detained in institutions or parts of the same
institution separate from adults.[513]
207.
The facilities in which detainees are kept must also respect
minimum physical attributes. Under no circumstances may detainees be
held in locations that would endanger their lives or physical and mental
health.[514]
Detainees should be kept in buildings or quarters which afford every
possible safeguard as regards hygiene and health, and provide efficient
protection against the climate.[515]
In addition, the premises are to be protected from dampness, adequately
heated and lighted, and sleeping quarters are to be sufficiently
spacious and well ventilated. The detainees are to have suitable bedding
and blankets considering the climate, and the personal characteristics
of the detainees. They should have access to sanitary conveniences
sufficiently hygienic and clean.[516]
The detainees should have adequate water, food, clothing and necessary
medical attention.[517]
Any transfer or evacuation of detainees must be effected humanely.[518] 208.
While civilian courts are charged with supervising human rights
protections in times of peace and states of emergency, the Third and
Fourth Geneva Conventions provide the Protecting Powers[519]
and, with the consent of the Detaining Power concerned, the
International Committee of the Red Cross, with roles in supervising the
detention and treatment of prisoners of war and civilian internees
during international armed conflict. The ICRC may also play a similar
role in the context of a non-international armed conflict.[520]
However, as noted in Part III(C) concerning the right to personal
liberty and security,[521]
there
may be circumstances in which the supervisory mechanisms under
international humanitarian law are not properly engaged or available, or
where the detention or internment of civilians or combatants continue
for a prolonged period. Where this occurs, the regulations and
procedures under international humanitarian law may prove inadequate to
properly safeguard the minimum standards of treatment of detainees, and
the supervisory mechanisms under international human rights law,
including habeas corpus and amparo remedies, may
necessarily supercede international humanitarian law in order to ensure
at all times effective protection of the fundamental rights of
detainees. 209.
Detainees who are subject to disciplinary or penal sanctions are
to be afforded similar detention conditions, treated humanely at all
times and never subjected to torture or inhumane treatment.[522]
In particular, corporal punishments, prolonged periods of time in
solitary confinement and the placing of detainees in dark cells are
prohibited.[523]
Instruments of restraint, such as handcuffs, chains, irons and
strait-jacket, shall never be applied as a punishment, as they
constitute prohibited corporal punishments.[524]
Any treatment of additional surveillance or restraint on the detainees
may never affect the detainees’ health and are to be used
exceptionally in accordance with the principles of necessity and
proportionality.[525]Treatments
that could potentially endanger the detainees’ health are to be
supervised by medical officers and prohibited if they actually endanger
the health of the detainees.[526]
210.
The interrogation of individuals suspected of having committed
terrorist activities is also strictly limited by both international
human rights and humanitarian law standards relative to the right to
humane treatment and the absolute prohibition of torture.[527]
211.
Accordingly, all methods of interrogation that may constitute
torture or other cruel, inhuman or degrading treatment are strictly
prohibited. This could include severe and deliberate mistreatment
causing very serious and cruel suffering, such as severe beatings,[528]
suspending prisoners in humiliating
and painful ways,[529]
rape[530]
and sexual aggression,[531]
electric shocks, [532]
suffocation, [533]
burns[534]
and the extraction of fingernails or teeth.[535]
212.
In addition, while each case must be evaluated on its own
circumstances, torture or other cruel, inhumane or degrading treatment
could include more subtle treatments that have nevertheless been
considered sufficiently cruel, such as exposure to excessive light or
noise, administration of drugs in detention or psychiatric institutions,
prolonged denial of rest or sleep, food, sufficient hygiene, or medical
assistance, total isolation and sensory deprivation.[536]
213.
Acts constituting other cruel, inhuman or degrading punishment or
treatment
are also strictly prohibited. As discussed above, conduct of
this nature could include death threats,[537]
prolonged incommunicado detention,[538]
and deprivation of sleep.[539]
214.
Finally, it should be emphasized that
although detainees may be interrogated, they may not be compelled
to be a witness against themselves, to plead guilty or to confess.[540]
Moreover,
in situations of international armed conflict, a prisoner of war under
interrogation is not only entitled to the right against
self-incrimination, but is only bound to give only his surname, first
names and rank, date of birth, and army, regimental, personal or serial
number, or failing this, equivalent information, and cannot be compelled
to answer any other question, or to give information other than that
listed above.[541] 215.
Applicable international law norms may also have implications
with respect to the detention and removal of immigrants, including those
suspected of terrorist activity. Further discussion in this regard is
provided in Part III(H) below concerning the situation of migrant
workers, asylum seekers, refugees and other non-nationals. 216.
It should be emphasized that notwithstanding the threat or
gravity of a situation of terrorist violence, and regardless of whether
it arises in the context of armed conflict, the right to humane
treatment is a non-derogable right under Article 27(2) of the American
Convention and Article 5 of the Inter-American Torture Convention.[542]
More specifically, the prohibition against torture constitutes a
peremptory norm of international law,[543]
and therefore may not be suspended or restricted under any
circumstances. D.
Rights to Due Process of Law and to a Fair Trial 1.
International Human Rights Law 217.
Within the inter-American human rights system, the rights to due
process of law and to a fair trial are prescribed principally in
Articles XVIII and XXVI of the American Declaration and Articles 8 and 9
of the American Convention on Human Rights, which provide as follows: American
Declaration XVIII.
Every person may resort to the courts to ensure respect for his
legal rights. 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. XXVI.
Every accused person is presumed to be innocent until proved
guilty. Every person accused of an offense has the right to be given an
impartial and public hearing, and to be tried by courts previously
established in accordance with pre-existing laws, and not to receive
cruel, infamous or unusual punishment. American
Convention 8.1.
Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal,
or any other nature. 2. Every person accused of a criminal offense has
the right to be presumed innocent so long as his guilt has not been
proven according to law. During the proceedings, every person is
entitled, with full equality, to the following minimum guarantees: a.
the right of the accused to be assisted without charge by a translator
or interpreter, if he does not understand or does not speak the language
of the tribunal or court; b. prior notification in detail to the accused
of the charges against him; c. adequate time and means for the
preparation of his defense; d. the right of the accused to defend
himself personally or to be assisted by legal counsel of his own
choosing, and to communicate freely and privately with his counsel; e.
the inalienable right to be assisted by counsel provided by the state,
paid or not as the domestic law provides, if the accused does not defend
himself personally or engage his own counsel within the time period
established by law; f. the right of the defense to examine witnesses
present in the court and to obtain the appearance, as witnesses, of
experts or other persons who may throw light on the facts; g. the right
not to be compelled to be a witness against himself or to plead guilty;
and h. the right to appeal the judgment to a higher court. 3. A
confession of guilt by the accused shall be valid only if it is made
without coercion of any kind. 4. An accused person acquitted by a
nonappealable judgment shall not be subjected to a new trial for the
same cause. 5. Criminal proceedings shall be public, except insofar as
may be necessary to protect the interests of justice. 9.
No one shall be convicted of any act or omission that did not
constitute a criminal offense, under the applicable law, at the time it
was committed. A heavier penalty shall not be imposed than the one that
was applicable at the time the criminal offense was committed. If
subsequent to the commission of the offense the law provides for the
imposition of a lighter punishment, the guilty person shall benefit
therefrom. 218.
As is evident from the above texts, which mirror protections
provided for in other regional and international human rights
instruments,[544]
these provisions guarantee fundamental substantive and procedural
protections in the determination of accusations of a criminal nature. As
discussed in further detail below, these protections are defined to
encompass certain fundamental principles of criminal law, including the
right to be presumed innocent, and the nullum
crimen sine lege, nulla poena sine lege, and non-bis-in-idem
principles. Also guaranteed are the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent and
impartial tribunal, and a non-exhaustive enumeration of due procedural
guarantees that are considered essential to a fair hearing. 219.
The rules and principles embodied in the above protections are
relevant not only to criminal proceedings, but also, mutatis
mutandis, to other proceedings through which rights and obligations
of a civil, labor, fiscal or other nature are determined.[545]
As will be elaborated upon in Part III(H) below, non-criminal
proceedings to which certain due process protections have been found to
apply in this and other human rights systems include procedures
concerning the detention, status or removal of non-nationals.[546]
220.
It should also be observed at this stage that certain
multilateral conventions that address efforts to combat terrorism and
its various manifestations specifically provide that individuals accused
of crimes relating to terrorism must be afforded the legal guarantees of
due process in any proceedings taken against them.[547]
221.
According to the jurisprudence of the inter-American human rights
system, as articulated through opinions and judgments of the
Inter-American Court of Human Rights and special and individual case
reports of the Commission, the components of the requirements of fair
trial and to due process of law entail certain essential requirements
and restrictions. Several of the most pertinent of these attributes are
discussed below.
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[506]
For example, during an armed conflict, prisoners of war should be
detained in prisoner of war camps and not in regular prisons. Third
Geneva Convention, supra note
67, Articles 21, 97. Civilian internees should similarly be detained
in civilian camps and not in regular prisons. Fourth Geneva
Convention, supra note 36,
Articles 41-43, 68, 78-88, 124. [507]
Third Geneva Convention, supra note
67, Article 5. Additional Protocol I, supra
note 68, Article 45. The determination as to whether a combatant is
entitled to prisoner of war status need not necessarily require a
trial by a civilian court, but can be made by an administrative body.
See, e.g., US
Department of the Army, Field Manual 27-10, The Law of Land Warfare.
See also
Part II(B) on the right to personal liberty and security, para. 130; Part III(F) on the obligation to respect and ensure,
non-discrimination and the right to judicial protection, para. 347. [508]
Additional Protocol I, supra
note 68, Article 45. [509]
Third Geneva Convention, supra note
67, Article 5. [510]
See supra Parts
II(B), III(B), III(D). See also
United States v. List (The Hostage Case), Trial
of the War Criminals before the Nuremberg Tribunal 1228, 1238
(1950) and United Nations War Crimes Commission, Law Reports of Trials
of War Criminals, Volume VIII, 1949, at 50 (stating that “[i]t
cannot be questioned that acts done in times of war under the military
authority of an enemy cannot involve any criminal liability on the
part of officers or soldiers if the acts are not prohibited by the
conventional or customary rules of war.”); Lieber Instructions, supra
note 208, Articles 56, 57; Third Geneva Convention, supra
note 67, Article 87 (providing that “[p]risoners of war may not be
sentenced […] to any penalties except those provided for in respect
of members of the armed forces of the said power who have committed
the same acts.”); David
1999, supra note 229, at
379-381; Sassoli & Bouvier,
supra note 162, at 125-126. [511]
For applicable international human rights law standards, see American
Convention, Article 5; UN Standard Minimum Rules for the Treatment of
Prisoners, supra note 335,
Rule 8. For international humanitarian law standards applicable in
international armed conflicts, see Third Geneva Convention, supra
note 67, Article 97; Fourth Geneva Convention, supra
note 36, Article 124. [512]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rule 8. For international humanitarian law standards
applicable in international armed conflicts, see Third Geneva
Convention, supra note 67,
Articles 25, 29, 97, 108; Fourth Geneva Convention, supra
note 36, Articles 76, 85, 124; Additional Protocol I, supra
note 68, Article 75(5). For international humanitarian law standards
applicable in non-international armed conflicts, see Additional
Protocol II, supra note 36, [513]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rule 8. For international humanitarian law standards
applicable in international armed conflicts, see Additional Protocol
I, supra note 68, Article
77(4). However, with respect to protected persons subjected to
internment, the Fourth Geneva Convention provides: “[…]Throughout
the duration of their internment, members of the same family, and in
particular parents and children, shall be lodged together in the same
place of internment, except when separation of a temporary nature is
necessitated for reasons of employment or health or for the purposes
of enforcement of the provisions of Chapter IX of the present Section.
Internees may request that their children who are left at liberty
without parental care shall be interned with them. Wherever possible,
interned members of the same family shall be housed in the same
premises and given separate accommodation from other internees,
together with facilities for leading a proper family life.” Fourth
Geneva Convention, supra note
36, Article 82. [514]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rules 9, 10, 11, 22-26.
See also
Congo Case, supra note 419,
para 58. For international humanitarian law standards applicable in
international armed conflicts, see Third Geneva Convention, supra
note 67, Articles 13, 22-25; Fourth Geneva Convention, supra
note 36, Articles 32, 85; Additional Protocol I, supra
note 68, Articles 11(4), 75(2). For international humanitarian law
standards applicable in non-international armed conflicts, see
Additional Protocol II, supra note
36, Articles 4(2), 5(2). [515]
For international humanitarian law standards applicable in
international armed conflicts, see Fourth Geneva Convention, supra
note 36, Article 85; Third Geneva Convention, supra
note 67, Article 25. For applicable international human rights law
standards, see UN Standard Minimum Rules for the Treatment of
Prisoners, supra note 335,
Rule 10. [516]
For international humanitarian law standards applicable in
international armed conflicts, see Third Geneva Convention, supra
note 67, Article 25, and Fourth Geneva Convention, supra
note 36, Article 85. For applicable international human rights law
standards, see UN Standard Minimum Rules for the Treatment of
Prisoners, supra note 335,
rules 10, 12–16, 19. Desmond McKenzie Case, supra
note 272, para. 288. See
similarly Baptiste Case, supra
note 430, paras. 133-138. [517]
For international humanitarian law standards applicable in
international armed conflicts, see Third Geneva Convention, supra
note 67, Articles 15-16, 25-27, 29-32, 109 and following; Fourth
Geneva Convention, supra note
36, Articles 38, 56 and following, 89-90.
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rules 17-18, 20-26. Congo Case, supra
note 419. [518]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rule 33. For international humanitarian law standards
applicable in international armed conflicts, see Third Geneva
Convention, supra note 67,
Articles 19-20, 46; Fourth Geneva Convention, supra
note 36, Article 49 and 127. [519]
See, e.g.,
Third Geneva Convention, supra note 67, Article 8 (providing
that the Convention “shall be applied with the cooperation and under
the scrutiny of the Protecting Powers whose duty it is to safeguard
the interests of the Parties to the conflict.”); Fourth Geneva
Convention, supra note 36,
Article 9. [520]
For international humanitarian law standards applicable in
international and non-international armed conflicts, see Article 3
Common to the Four 1949 Geneva Conventions, supra
notes 36, 67. For international humanitarian law standards
applicable in international armed conflicts, see Third Geneva
Convention, supra note 67,
Article 126; Fourth Geneva Convention, supra
note 36, Articles 142-143. [521]
See supra, Part III(C), para. 146. [522]
For international humanitarian law standards applicable in
international armed conflicts, see Third Geneva Convention, supra
note 67, Articles 13, 87, 89, 92, 97-98, 108; Fourth Geneva
Convention, supra note 36,
Articles 32, 100, 118, 119, 124-125; Additional Protocol I, supra
note 68, Articles 11(4), 75(2). For international humanitarian law
standards applicable in non-international armed conflicts, see
Additional Protocol II, supra note
36, Articles 4(2), 5(2). For applicable international human rights law
standards, see UN Standard Minimum Rules for the Treatment of
Prisoners, supra note 335,
Rules 27-34. [523]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rules 31, 32. See
also Suárez Rosero Case, supra
note 330; Desmond McKenzie Case, supra
note 272, para. 288. See
similarly Baptiste Case, supra
note 430, paras. 133-138. For international humanitarian law standards
applicable in international armed conflicts, see Third Geneva
Convention, supra note 67,
Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra
note 36, Articles 32, 118, 119, 124-125; Additional Protocol I, supra
note 68, Articles 11(4), 75(2). For international humanitarian law
standards applicable in non-international armed conflicts, see
Additional Protocol II, supra note
36, Articles 4(2), 5(2). [524] For applicable international human rights law standards, see UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. For international humanitarian law standards applicable in international armed conflicts, see Third Geneva Convention, supra note 67, Articles 13, 87, 108; Fourth Geneva Convention, supra note 36, Articles 32, 118-119; Additional Protocol I, supra note 68, Articles 11(4), 75(2). For international humanitarian law standards applicable in non-international armed conflicts, see Additional Protocol II, supra note 36, Articles 4(2), 5(2). Moreover, according to international human rights standards, chains and irons should never be used as restraints. See UN Standard Minimum Rules for the Treatment of Prisoners, supra note 335, Rule 33. While international humanitarian law standards do not expressly provide for such prohibition, the fact that irons and chains may inflict pain and cause physical damage suggests that even in armed conflict situations, the use of such instruments should be strictly limited to exceptional situations that require such measure, such as the transportation of detainees or the temporary protection of the detainees or their guardians, when there is no alternative restraint available, and only for the period of time requiring such measure. [525]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rules 27 and following. For international humanitarian law
standards applicable in international armed conflicts, see Third
Geneva Convention, supra
note 67, Articles 87, 89, 92; Fourth Geneva Convention, supra
note 36, Articles 118-119, 120. [526]
For applicable international human rights law standards, see UN
Standard Minimum Rules for the Treatment of Prisoners, supra
note 335, Rule 32. For
international humanitarian law standards applicable in international
armed conflicts, Third Geneva Convention, supra
note 67, Articles 13, 87, 89, 98, 108; Fourth Geneva Convention, supra
note 36, Articles 118, 119, 125, and see Additional Protocol I, supra
note 68, Articles 11(4) and 75(2). For international humanitarian law
standards applicable in non-international armed conflicts, see
Additional Protocol II, supra
note 36, Articles 4(2), 5(2). [527]
For applicable international human rights law standards, see American
Convention on Human Rights, supra
note 61, Article 5; American Declaration, supra
note 63, Article I; Inter-American Torture
Convention, supra note 105.
For international humanitarian law standards applicable in
international and non-international armed conflicts, see Article 3
Common to the Four Geneva Conventions,
supra notes 36, 67. For international humanitarian law standards
applicable in international armed conflicts, see Third Geneva
Convention, supra note 67,
Articles 13, 14, 17; Fourth Geneva Convention, supra
note 36, Articles 27, 32; Additional Protocol I, supra
note 68, Articles 11(4), 75(2). For international humanitarian law
standards applicable in non-international armed conflicts, see
Additional Protocol II, supra
note 36, Articles 4(2), 5(2). [528]
See, e.g., The Greek Case, supra
note 391. [529]
See, e.g., Aksoy
Case, supra note
346, para. 64. [530]
See, e.g., Aydin, supra
note 417, para. 84. [531]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119, referred to in Celibici TC Judgment, supra
note 193, para. 467. [532]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119, referred to in Celibici TC Judgment, supra
note 193, para. 467. [533]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119, referred to in Celibici TC Judgment, supra
note 193, para. 467. [534]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119, referred to in Celibici TC Judgment, supra
note 193, para. 467. [535]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119, referred to in Celibici TC Judgment, supra
note 193, para. 467. [536]
See generally
UN Special Rapporteur Report on Torture, supra
note 413, para. 119. See also
Muteba, HRC Case, supra
note 414, para. 10.2; Setelich,
HRC Case, supra note
414, para. 16.2; Weinberger,
HRC Case, supra note
414, para. 4. See also
Celibici TC Judgment, supra
note 193, paras 461, 467. [537]
See, e.g., Lissardi &
Rossi, supra note 412, at
51, 54. [538]
See, e.g., Velásquez Rodríguez
Case, supra note 249, para.
156. See also
Godínez Cruz Case, supra
note 249, para. 164. See also
Villagran Morales Case, supra
note 130, [539]
See, e.g., Ireland v.
United Kingdom, supra note
386, para. 96. [540]
For applicable international human rights law standards, see American
Convention on Human Rights, supra note 61, Article 8(3). For
international humanitarian law standards applicable in
non-international armed conflicts see Additional Protocol II, supra
note 36, Article 6(2). For international humanitarian law
standards applicable in international armed conflicts see Additional
Protocol I, supra note 68,
Article 75 (4). See Part
III(D), para. 261. [541]
Third Geneva Convention, supra
note 67, Article 17, See also
ICRC Commentary on the Third
Geneva Convention, supra
note 350, at 156-159. [542]
American Convention on Human Rights, supra
note 61, Article 27(2), Inter-American
Torture Convention, supra
note 105, Article 5. See
also Asencios Lindo et
al. Case, supra note 6,
para. 75; IACHR, Report on Canada (2000), supra
note 338, paras. 118, 154; IACHR Report on Peru (2000), supra
note 27. For international humanitarian law standards, see Article
3 Common to the Four Geneva Conventions, supra
notes 36, 67; Third Geneva Convention, supra
note 67, Articles 13, 14; Fourth Geneva Convention, supra
note 36, Articles 27, 32; Additional Protocol I, supra
note 68, Article 75; Additional Protocol II, supra
note 36, Articles 4, 5. [543]
IACHR, Report on Canada (2000), supra
note 338, paras. 118, 154. [544]
See, e.g., Universal
Declaration of Human Rights, supra
note 65, Article 11; International Covenant on Civil and Political
Rights, supra note 66,
Arts. 14, 15; European Convention on Human Rights, supra
note 137, Articles 6, 7. Article 40 of the UN Convention on the Rights
of the Child prescribes similar protections relating specifically to
proceedings involving children and has been the subject of
consideration by the Commission, supra note 122. See e.g. Rivas Case, supra
note 408. [545]
See I/A Court H.R., Constitutional
Court Case, Judgment of January 31, 2001, Ser. C Nº 7, paras.
69, 70 (finding that the minimum guarantees established under Article
8(2) of the Convention are not limited to judicial proceedings in a
strict sense, but also apply to proceedings involving the
determination of rights and obligations of a civil, labor, fiscal or
other nature.). See also
I/A Court H.R, Advisory Opinion OC-11/90, Exceptions
to Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a), and
46(2)(b) American Convention on Human Rights), August 10, 1990,
Series A, Nº 11, par. 28. See
similarly UNHRC, General
Comment Nº 13, Article 14 (21st sess., 1984), Compilation
of General Comments and General Recommendations adopted by Human
Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), para. 2
[hereinafter UNHRC General Comment Nº 13]. [546]
See, e.g., Case 11.610,
Report Nº 49/99, Loren Laroye Riebe Star and others (Mexico), Annual
Report of the IACHR 1998, paras. 46, 65-70 (applying Article 8(1) of
the American Convention in the context of administrative proceedings
leading to the expulsion of foreigners); Ferrer-Mazorra et
al. Case, supra note
114, para. 213; IACHR, Report on Canada (2000), supra
note 338, paras. 109, 115; Case 10.675, Report 51/96, Haitian
Interdiction Case (United States), Annual Report of the IACHR
(1993), para. 180. See
similarly Eur. Comm. H.R., Huber v. Austria, 1975 Y.B. Eur. Conv.
on H.R., paras. 69-71; Eur. Court H.R., Albert and Le Compte Case, 10
February 1983, Series A Vol. 58, para. 39 (considering the principles
of due process to be applicable, mutatis
mutandis, to disciplinary sanctions of an administrative nature). [547]
See, e.g.,
UN Crimes Against Internationally Protected Persons Convention, supra
note 35, Article 9 (“Any person regarding whom proceedings are being
carried out in connexion with any of the crimes set forth in article 2
shall be guaranteed fair treatment at all stages of the
proceedings”); 1977 OAS Terrorism Convention, supra
note 7, Article 4 (“Any person deprived of his freedom through the
application of this Convention shall enjoy the legal guarantees of due
process”), Article 8 (“To cooperate in preventing and punishing
the crimes contemplated in Article 2 of this Convention, the
contracting states accept the following obligations: [. . .] (c) To
guarantee to every person deprived of his freedom through the
application of this convention every right to defend himself”);
Inter-American Convention Against Terrorism, supra
note 8, Article 15(3) (“Any person who is taken in custody or
regarding whom any other measures are taken or proceedings are carried
out pursuant to this Convention shall be guaranteed fair treatment,
including the enjoyment of all rights and guarantees in conformity
with the law of the state in the territory of which that person is
present and applicable provisions of international law”). |
