a.         Fundamental Principles of Criminal Law

 

222.      Among the most fundamental principles governing criminal prosecutions that are afforded protection under international human rights law are the presumption of innocence, the non-bis-in-idem principle, and the nullum crimen sine lege and nulla poena sine lege principles, as well as the precept that no one should be convicted of an offense except on the basis of individual penal responsibility.[548] The inclusion of these principles in international human rights and humanitarian law instruments, the statutes governing international criminal tribunals,[549] and the domestic law of states[550] suggest that they are broadly considered to constitute general principles of criminal law.

 

223.      The Commission has long emphasized the axiomatic nature of the presumption of innocence to criminal proceedings, and has called upon states to ensure that it is expressly provided for in their domestic laws.[551] It is notable that this presumption can be considered violated where a person is held in connection with criminal charges for a prolonged period of time in preventative detention without proper justification, for the reason that such detention becomes a punitive rather than precautionary measure that is tantamount to anticipating a sentence.[552]

 

224.      Also central to fair criminal processes is the non-bis-in-idem principle, which has been described by the Inter-American Court in the context of Article 8(4) of the American Convention as intending to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause.[553] In this connection, the Court has counted among the circumstances that will preclude a new trial proceedings in which a tribunal has taken cognizance of the facts, circumstances and evidence relating to the alleged acts, evaluated them, and ruled on acquittal.[554]

 

225.      The nullum crimen sine lege and nulla poena sine lege principles, often referred to jointly as the principle of legality, prohibit states from prosecuting or punishing persons for acts or omissions that did not constitute criminal offenses, under applicable law, at the time they were committed. The human rights organs of the inter-American system have also interpreted the principle of legality as requiring crimes to be defined in unambiguous terms.[555] According to this requirement, crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense. This in turn requires a clear definition of the criminalized conduct, establishing its elements and the factors that distinguish it from behaviors that are either not punishable offenses or are punishable by other penalties.[556] As the Inter-American Court has observed, “[a]mbiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty.”[557] Connected with these principles is a general prohibition on the imposition of a heavier penalty than the one that was applicable at the time the criminal offense was committed, as well as the right to benefit from the imposition of a lighter punishment if one is provided for by law subsequent to the commission of the offense.[558]

 

226.      These principles are particularly significant in the context of domestic laws that prescribe crimes relating to terrorism. The Commission and the Court have previously found certain domestic anti-terrorism laws to violate the principle of legality because, for example, those laws have attempted to prescribe a comprehensive definition of terrorism that is inexorably overbroad and imprecise, or have legislated variations on the crime of “treason” that denaturalizes the meaning of that offense and creates imprecision and ambiguities in distinguishing between these various offenses.[559] The Commission also observes in this regard that states in this and other regions have taken a variety of approaches in attempting to prescribe sufficiently clear and effective anti-terrorism laws. Some states have endeavored to prescribe a specific crime of terrorism based upon commonly-identified characteristics of terrorist violence.[560] Other states have chosen not to prescribe terrorism as a crime per se, but rather have varied existing and well-defined common crimes, such as murder, by adding a terrorist intent or variations in punishment that will reflect the particular heinous nature of terrorist violence.[561] Whichever course is chosen, OAS member states should be guided by the basic principles articulated by the Inter-American Court and Commission on this issue. In order to ensure that punishments imposed for crimes relating to terrorism are rational and proportionate, member states are also encouraged to take the legislative or other measures necessary to provide judges with the authority to consider the circumstances of individual offenders and offenses when imposing sentences for terrorist crimes.[562]

 

227.      Finally, criminal prosecutions must comply with the fundamental requirement that no one should be convicted of an offense except on the basis of individual penal responsibility, and the corollary to this principle that there can be no collective criminal responsibility.[563] This requirement has received particular emphasis in the context of post-World War II criminal prosecutions, owing in large part to international public opposition to convicting persons based solely upon their membership in a group or organization.[564] This restriction does not, however, preclude the prosecution of persons on such established grounds of individual criminal responsibility such as complicity, incitement, or participation in a common criminal enterprise, nor does it prevent individual accountability on the basis of the well-established superior responsibility doctrine.[565]

 

b.         Right to a Hearing by a Competent, Independent and Impartial Tribunal previously established by Law

 

228.      The right to trial by a competent, independent and impartial tribunal previously established by law has been interpreted by the Commission and the Inter-American Court as entailing certain conditions and standards that must be satisfied by tribunals charged with judging the substantiation of any accusation of a criminal nature or with the determination of a person’s right and obligations of a civil, fiscal, labor or other nature. Much of the existing inter-American jurisprudence in this area has developed through the consideration and condemnation of certain specific practices by which member states have endeavored to respond to terrorist and other threats and which have been found to fall short of these conditions and standards.

 

229.      Underlying this aspect of the right to a fair hearing are the fundamental concepts of judicial independence and impartiality, which, like the principles of criminal law canvassed above, are broadly considered indispensable to the proper administration of justice and the protection of fundamental human rights.[566] The requirement of independence in turn necessitates that courts be autonomous from the other branches of government, free from influence, threats or interference from any source and for any reason, and benefit from other characteristics necessary for ensuring the correct and independent performance of judicial functions, including tenure and appropriate professional training.[567] The impartiality of a tribunal must be evaluated from both a subjective and objective perspective, to ensure the absence of actual prejudice on the part of a judge or tribunal as well as sufficient assurances to exclude any legitimate doubt in this respect. These requirements in turn require that a judge or tribunal not harbor any actual bias in a particular case, and that the judge or tribunal not reasonably be perceived as being tainted with any bias.[568]

 

230.      In the context of these fundamental requirements, the jurisprudence of the inter-American system has long denounced the creation of special courts or tribunals that displace the jurisdiction belonging to the ordinary courts or judicial tribunals and that do not use the duly established procedures of the legal process.[569] This has included in particular the use of ad hoc or special courts or military tribunals to prosecute civilians for security offenses in times of emergency, which practice has been condemned by this Commission, the Inter-American Court and other international authorities. The basis of this criticism has related in large part to the lack of independence of such tribunals from the Executive and the absence of minimal due process and fair trial guarantees in their processes.[570]

 

231.      It has been widely concluded in this regard that military tribunals by their very nature do not satisfy the requirements of independent and impartial courts applicable to the trial of civilians, because they are not a part of the independent civilian judiciary but rather are a part of the Executive branch, and because their fundamental purpose is to maintain order and discipline by punishing military offenses committed by members of the military establishment. In such instances, military officers assume the role of judges while at the same time remaining subordinate to their superiors in keeping with the established military hierarchy.[571]

 

232.      This is not to say that military tribunals have no place within the military justice systems of member states. The Inter-American Court and this Commission have recognized in this connection that military courts can in principle constitute an independent and impartial tribunal for the purposes of trying members of the military for certain crimes truly related to military service and discipline and that, by their nature, harm the juridical interests of the military, provided that they do so with full respect for judicial guarantees.[572] Military tribunals may not, however, be used to try violations of human rights or other crimes that are not related to the functions that the law assigns to military forces and that should therefore be heard by the regular courts.[573] Military tribunals are also precluded from prosecuting civilians, although certain human rights supervisory bodies have found that in exceptional circumstances military tribunals or special courts might be used to try civilians but only where the minimum requirements of due process are guaranteed.[574] During armed conflicts, a state’s military courts may also try privileged and unprivileged combatants, provided that the minimum protections of due process are guaranteed. Article 84 of the Third Geneva Convention, for example, expressly provides that

 

[a] prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offense alleged to have been committed by the prisoner of war. In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.).[575]

 

Although the provisions of international humanitarian law applicable to unprivileged combatants, including Article 75 of Additional Protocol I, do not specifically address the susceptibility of such combatants to trial by military courts, there appears to be no reason to consider that a different standard would apply as between privileged and unprivileged combatants. In any event, the standards of due process to which unprivileged combatants are entitled may in no case fall below those under Article 75 of Additional Protocol I.

 

233.      Another practice denounced by the organs of the inter-American human rights system as contrary to the right to be tried by a competent, independent and impartial tribunal is the use of “faceless” justice systems, principally because the anonymity of the prosecutors, judges and witnesses deprives the defendant of the basic guarantees of justice.[576] A defendant in such circumstances does not know who is judging or accusing him or her and therefore cannot know whether that person is qualified to do so, nor may he or she know whether there exists any basis to request recusal of these authorities based upon incompetence or lack of impartiality. The defendant is also prevented from carrying out any effective examination of the opposing witnesses, as he or she does not possess any information regarding the witnesses’ background or motivations and does not know how the witness obtained information about the facts in question.[577] For these reasons, the use of systems of secret justice have been found by the Inter-American Court and the Commission to constitute a flagrant violation of the guarantee essential to due process, to be judged by an independent and impartial judge or court as well as the guarantee regarding publicity for criminal trials.[578] At the same time, as discussed in the section below concerning derogation from the right to a fair trial, it must be recognized that efforts to investigate and prosecute crimes, including terrorist crimes, may render judges and others involved in the administration of justice vulnerable to threats to their lives or integrity. Indeed, states are obliged to take all necessary measures to prevent violence against judges, lawyers and others involved in the administration of justice.[579] This may in turn require that certain exceptional measures be taken to protect the life, physical integrity and independence of judges on a case by case basis, always providing, however, that the nature or implementation of such measures does not compromise a defendant’s non-derogable fair trial guarantees, including the right to a defense and the right to be tried by a competent, independent and impartial tribunal.

 

c.         Right to Trial within a Reasonable Time

 

234.      The fundamental components of the right to due process and to a fair trial also include the right to a hearing within a reasonable time. While the concept of reasonable time is not easy to define, certain prerequisites have been articulated in this and other human rights systems that are considered necessary to give proper effect to this right. It has been held in particular that the concept of reasonable time encompasses the entire proceeding at issue, from the first act of the process until a final and firm judgment is delivered, including any appeals that may be filed.[580] The reasonableness of the length of proceedings is to be evaluated in light of the specific circumstances of the case, considering in particular the complexity of the matter, the conduct of the interested party, and the conduct of the authorities.[581] The fact that a judicial system is overburdened or has inadequate resources cannot in itself justify lengthy delays in criminal processes  in light of the obligation of states to regulate the elements of their criminal procedural machinery to ensure that individuals are tried within a reasonable time.[582] Further, in certain cases a prolonged delay in itself can constitute a violation of the right to a fair trial, where a state has failed to provide an explanation and proof as to why it has taken more time than normally required to issue a final judgment in a particular case.[583] The Commission has observed that a pattern of unreasonable delays in the prosecution of suspected human rights violations contributes to a climate of impunity for those crimes.[584]

 

d.         Right to Due Guarantees of a Fair Trial

 

235.      International human rights law requires that a hearing before a competent, independent and impartial tribunal, in order to be fair, must be accompanied by certain due guarantees that afford a person a proper and effective opportunity to defend against any charges levied against him or her. While the governing principle in any proceeding must always be fairness, and while additional guarantees may be necessary in specific circumstances to ensure a fair hearing,[585] the most essential protections have been articulated as including the right of the accused to prior notification in detail of the charges against him or her, the right to defend himself or herself personally or to be assisted by legal counsel of his or her own choosing or free of charge where the requirements of fairness so require, and the right to communicate freely and privately with counsel. These protections also include the right to adequate time and means for the preparation of his or her 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. Further, a defendant must not be compelled to be a witness against himself or herself or to plead guilty, and must be afforded the right to a public trial and the right to appeal the judgment to a higher court. In cases where the defendant does not understand or speak the language of the court or tribunal he or she must be assisted without charge by a translator or interpreter.

 

236.      Certain aspects of these protections warrant further comment. Foremost among the procedural rights of an accused is the right to be assisted by legal counsel of one’s choosing and, under appropriate circumstances, to be assisted by counsel provided free of charge where the interests of fairness so require.[586] Both the Commission and the Inter-American Court have observed in this respect that in criminal proceedings and those relating to rights and obligations of a civil, labor, fiscal or any other nature, an indigent has the right to legal counsel free of charge where such assistance is necessary for a fair hearing. Among the factors that bear on the determination of whether free legal representation is necessary for a fair hearing are the significance of a legal proceeding, its legal character, and its context in a particular legal system.[587]

 

237.      The right to assistance of counsel is in turn intimately connected with the right of a defendant to adequate time and means for the preparation of his or her defense,[588] which requires that all arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality.[589] This right, together with the right of a defendant not to make a confession of guilt under coercion of any kind,[590] also entail a defendant’s prerogative to have a lawyer present for all important stages of the proceeding particularly when the defendant is held in detention, as well as the right of a defendant to have an attorney present when giving a statement or undergoing interrogation.[591]

 

238.      The effective conduct of a defense additionally encompasses the right of the person concerned to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf, under the same conditions as opposing witnesses. This requirement has been interpreted to prohibit the failure to provide a defendant with the right to cross-examine the witnesses whose testimony is the basis of the charges brought against him or her.[592] Similarly, a defendant must be afforded access to documents and other evidence under the possession and control of the authorities necessary to prepare his or her case.[593] Furthermore, in order to preserve public confidence in the courts and to protect litigants against the administration of justice in secret and without public scrutiny, due process standards require the trial process and the pronouncement of judgment to take place in public,[594] save in exceptional circumstances in which the interests of justice strictly require otherwise.

 

239.      Once an unfavorable decision is rendered at first instance, the right to appeal that judgment to a higher court must also be granted in compliance with fundamental fair trial protections.[595] It must be noted in this regard that the standards of impartiality and independence prescribed for a fair hearing at the first instance are equally applicable to appellate tribunals.[596] It is on this basis, for example, that the Inter-American Court has found that the right to appeal is not satisfied merely because there is a higher court than the one that tried and convicted the accused and to which the latter has or may have recourse.[597] For a lawful and valid review of the judgment in compliance with human rights standards, the higher court must have the jurisdictional authority to take up the merits of the particular case in question and must satisfy the requirements that a court must meet to be a fair, impartial and independent tribunal previously established by law.[598] These standards have also been held to apply in respect of wartime military procedures such as prosecutions by Courts-Martial.[599]

 

e.         Civil and other Proceedings

 

240.      While compliance with the protections discussed above has most frequently been evaluated by the Inter-American Commission and Court in the context of criminal proceedings, the requirements of a fair trial and due process of law are not, as indicated previously, limited to such proceedings. They are also applicable, mutandis mutatis, to non-criminal proceedings for the determination of a person’s rights and obligations of a civil, labor, fiscal or any other nature.[600] Consideration by the Commission of the fair trial requirements of administrative proceedings has occurred to a significant extent in relation to the immigration laws and practices of states, which are discussed in further detail in Part III(H) below.

 

            f.          Inter-State Cooperation in Criminal Matters

 

241.      Also subject to the due process and other requirements of international human rights protections are methods of inter-state cooperation in the investigation, prosecution and punishment of international, transnational and domestic crimes. Processes of this nature include the extradition of criminal  suspects for criminal prosecution,[601] inter-state transfer of witnesses and prisoners in the context of criminal proceedings, and various modes of mutual legal assistance in criminal matters.[602] Aspects of these methods of cooperation are reflected in bilateral[603] and multilateral treaties,[604] letters rogatory and other customary practices between states,[605] and domestic legislation.[606] In this regard, the Commission wishes to commend OAS member states for their extensive efforts to collaborate in the campaign against terrorism, as reflected most recently in the provisions of the Inter-American Convention Against Terrorism.[607]

 

242.      Also as properly recognized in the Inter-American Convention against Terrorism,[608] the manner in which states implement or otherwise participate in these methods of cooperation must comply with minimal standards of human rights law, including in particular the right to liberty and security, the rights to due process of law and to a fair trial, and the right to privacy. As with all acts and omissions attributable a state and its agents, these human rights protections oblige states to refrain from supporting or tolerating methods of inter-state cooperation that fail to conform with their international human rights commitments.[609] As noted previously, these obligations include ensuring respect for the protections under Article 22(8) of the American Convention and Article 3 of the UN Torture Convention, which prohibit the removal of a person by extradition or otherwise to a country if his or her right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political or if there are substantial grounds for believing that he or she would be subjected to torture.

 

243.      While the Commission is unable for the purposes of this report to undertake an exhaustive analysis of the many and varied human rights concerns potentially raised by method of cooperation by states in penal and related matters, it notes with particular concern past instances in this Hemisphere in which established inter-state cooperation procedures have been circumvented by extralegal methods having serious implications for the human rights of individuals affected by such procedures. This has included in particular the expulsion of persons to jurisdictions where their lives or physical integrity may be in danger and extraterritorial abduction or kidnapping of a subject present in one state for prosecution in another state.[610] Transgressions of this nature have been proclaimed by international and domestic authorities to constitute violations of public international law[611] and as seriously implicating the fundamental rights of the person concerned to freedom or movement and residence within the borders of a state[612] and the right to liberty and security, including the right not to be subject to arbitrary detention.[613] The rendering of an individual within the jurisdiction of a state by such methods may also be considered to undermine the legitimacy and fairness under international law of any subsequent legal proceedings to which the individual may be subjected by the receiving state.[614]

 

 

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[548] American Declaration, supra note 63, Article XXVI; American Convention on Human Rights, supra note 61, Articles 8(2), 8(4), 9.

[549] See Rome Statute, supra note 31, Articles 22-33; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law  Committed in the Territory  of the Former Yugoslavia since 1991, S.C. Res. 827, U.N. SCOR, 48th Sess., UN Doc S/Res/827, of 25 May 1993, Article 10 [hereinafter ICTY Statute]; Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, UN SCOR, 49th Sess, UN Doc. S/Res/955 (1994), Article 9 [hereinafter ICTR Statute].

[550] See generally M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int’l L. 235, 267-293 (1993).

[551] See, e.g., IACHR Report on Argentina (1980), supra note 27, at 224; IACHR, Report on the Situation of Human Rights in Nicaragua (1981), 30 June 1981, OEA/Ser.L/V/II.53, doc. 25, pp. 88-9, 93, 168 [hereinafter IACHR Report on Nicaragua (1981)].

[552] Suárez Rosero Case, supra note 330, para. 77.

[553] Loayza Tamayo Case, supra note 395, para. 66.

[554] Loayza Tamayo Case, supra note 395, para. 76. See also Jorge Alberto Giménez Case, supra note 330, paras. 77-80.

[555] See, e.g., IACHR Report on Peru (2000), supra note 27, paras. 80, 168; Castillo Petruzzi et al. Case, supra note 55, para. 121.

[556] See, e.g., Castillo Petruzzi et al. Case, supra note 55, para. 121.

[557] Castillo Petruzzi et al. Case, supra note 55, para. 121.

[558] See American Convention on Human Rights, supra note 61, Article 9; International Covenant on Civil and Political Rights, supra note 66, Article 15. See similarly Additional Protocol I, supra note 68, Article 75(4)(c); Additional Protocol II, supra note 36, Article 6(2)(c).

[559] See, e.g., IACHR Report on Peru (2000), supra note 27, paras. 80, 168; Castillo Petruzzi et al. Case, supra note 55, para. 121.

[560] See, e.g., Detention of Terrorist (Northern Ireland) Order of 1972 (United Kingdom), cited in Ireland v. United Kingdom, supra note 386, para. 85 (defining terrorism as “the use of violence to political ends [including] any use of violence for the purpose of putting the public or any section of the public in fear.”).

[561] See, e.g., Commission of International Jurists, Report of the Commission of International Jurists on the Administration of Justice in Peru, 30 November 1993 [hereinafter Report of the Commission of International Jurists on the Administration of Justice in Peru], at 15-22 (providing examples of European anti-terrorism laws that define terrorism in relation to well-established common crimes). The Commission of International Jurists is an international commission created by agreement between the governments of Peru and the United States of America. The 1993 report has been referred to by major human rights non-governmental organizations such as Amnesty International, Human Rights Watch and Lawyers Committee for Human Rights. See similarly, 18 U.S.C. § 2331.

[562] In this connection, Article 5(6) of the American Convention provides that “[p]unishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoner.”

[563] See American Convention on Human Rights, supra note 61, Article 5(3) (“Punishment shall not be extended to any one other than the criminal”).

[564] See generally ICRC Commentary on the Additional Protocols, supra note 210, at 880-881. See also Fourth Geneva Convention, supra note 36, Article 33 (providing in part that “[n]o protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”); Additional Protocol I, supra note 68, Article 75(4)(b); Additional Protocol II, supra note 36, Article 5(2)(b); ICTY Statute, supra note 222, Article 7; ICTR Statute, supra note 505, Article 6; Rome Statute, supra note 31, Article 25; UN Secretary General Report (1993), supra note 189, para. 51 (declining to retain for the purposes of the jurisdiction of the International Criminal Tribunal for the former Yugoslavia the criminal liability of individuals by reason of their membership in an association or organization considered to be criminal.)

[565] For examples of permissible grounds of individual criminal responsibility, see, e.g., ICTY Statute, supra note 222, Article 7; ICTR Statute, supra note 505, Article 6; Rome Statute, supra note 31, Article 25. 

[566] See, e.g., Report of the Special Rapporteur for Independence and Impartiality of the Judiciary, submitted in accordance with Commission on Human Rights Resolution 1994/41, Commission on Human Rights, Fifty-first session, 6 February 1995, E/CN.4/1995/39, para. 34.

[567] See, e.g., IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 139; IACHR, Report on the Situation of Human Rights in Haiti (1995), OEA/Ser./V/II.88, February 9, 1995, Ch. V, paras. 276-280; IACHR, Report on the Situation of Human Rights in Ecuador (1997), 24 April 1997, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, Ch. III; IACHR, Report on the Situation of Human Rights in Mexico (1998), September 24, 1998, OEA/Ser.L/V/II.100, Doc. 7 rev. 1, Ch. V, paras. 393-398.

[568] Andrews Case, supra note 243, paras. 159-161. See similarly Eur. Court H.R., Findlay v. UK, 25 February 1997, Reports 1997-I, p. 281, para. 73.

[569] See, e.g., IACHR, Report on the Situation of Human Rights in Chile, Doc. OEA/Ser.L/V/II.34, 25 October 1974; IACHR, Report on the Situation of Human Rights in Uruguay, Doc. OEA/Ser.L/V/II.43, 31 January 1978; IACHR, Report on Nicaragua (1981), supra note 551; IACHR, Report on the Situation of Human Rights in Guatemala, Doc. OEA/Ser.L/V/II.61, 5 October 1983 [hereinafter IACHR Report on Guatemala (1983)]; IACHR Report on Chile (1985), supra note 114, para. 139; Castillo Petruzzi et al. Case, supra note 55, para. 129, citing Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Conference on the Prevention of Crime and Treatment of Offenders, held in Milan, August 26 to September 6, 1985, and confirmed by the UN General Assembly in it resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, Principle 5 [hereinafter Basic Principles on the Independence of the Judiciary]. See similarly UNHRC General Comment Nº 13, supra note 545, para. 4.

[570] See, e.g., Ten Years of Activities, supra note 1, at 331; IACHR Report on Nicaragua (1981), supra note 551, at 62 and following; IACHR Report on Chile (1985), supra note 114, at 190 and following. See similarly Eur. Comm. H.R., Zand v. Austria, Application Nº 7360/76, 12 October 1978, para. 69 (holding that it is the “object and purpose of the clause in Article 6(1) [of the European Convention on Human Rights] requiring that the court shall be ‘established by law’ that the judicial organization in a democratic society must not depend on the discretion of the Executive, but that it should be regulated by law emanating from Parliament.”); Basic Principles on the Independence of the Judiciary, supra note 569, Principle 4 (stating that “[t]here shall not be any inappropriate or unwarranted inference with the judicial process, nor shall judicial decisions by the courts by subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.”).

[571] See, e.g., IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 140; IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 25.

[572] See I/A Court H.R., Las Palmeras Case, Judgment of December 6, 2001, Ser. C
Nº 90, paras. 51-53; IACHR Report on Colombia (1999), supra note 110, Ch.V, para. 27. See similarly I/A Court H.R., Durand y Ugarte Case, August 16, 2000, Series C, Nº 68, para. 117 (indicating that in a democratic state military jurisdiction “necessarily has a restrictive and special scope and is designed to protect special judicial interests linked to the functions that the law assigns to military forces.”); Eur. Court H.R., Case of Morris v. U.K., 26 February 2002, App.
Nº 38784/97, para. 59.

[573] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 17, 27-32; Asencios Lindo et al. Case, supra note 6, paras. 114-128.

[574] See, e.g., UNHRC, Fals Borda v. Colombia, Comm. Nº 46/1979, 27 July 1982; UNHRC General Comment Nº 13, supra note 545, para. 4; The Greek Case, supra note 391, para. 328; Eur. Court H.R., Case of Incal v. Turkey, 8 June 1998, Reports 1998-IV, para. 70.

[575] Third Geneva Convention, supra note 67, Article 84.

[576] IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 121-127; Annual Report of the IACHR 1996, at 658 (Colombia), 736 (Peru). See similarly UN Commission on Human Rights, Report of UN Special Rapporteur on the Independence of Judges and Lawyers, Mr. Param Cumaraswamy, Mission to Peru, Doc. E/CN.4/1998/39/Add.1 (1998), paras. 72-74.

[577] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, paras. 121-127. See also infra, Part III(D), paras. 238, 251.

[578] IACHR Report on Peru (2000), supra note 27, Ch. II, paras. 102-103; Castillo Petruzzi et al. Case, supra note 55, para. 172.

[579] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. IV, paras. 67-70.

[580] Suárez Rosero Case, supra note 330, paras. 70-72 (finding that a period of delay of 4 years and 2 months between the victim’s arrest and disposition of his final appeal to “far exceed” the reasonable time contemplated in the Convention and therefore to violate Articles 7(5) and 8(1) of the Convention.). See similarly UNHRC General Comment Nº 13, supra note 545. 

[581] I/A Court H.R., Genie Lacayo Case, January 29, 1997, Series C Nº 30, para. 77, citing Eur. Court H.R., Motta v. Italy, 19 February 1991, Series A Nº 195-A, para. 30; Eur. Court H.R., Ruiz-Mateos v. Spain, 23 June 1993, Series A Nº 262, para. 30. See also Desmond McKenzie Case, supra note 272, paras. 258, 259; Michael Edwards et al. Case, supra note 102,
paras. 218, 219.

[582] Desmond McKenzie Case, supra note 272, paras. 262.

[583] Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, supra note 272, paras. 143-145. See similarly Desmond McKenzie Case, supra note 272, para. 260; Jorge Alberto Giménez Case, supra note 330, para. 101.

[584] See, e.g., IACHR Report on Colombia 1999, supra note 110, Ch. IV, para. 62.

[585] Advisory Opinion OC-11/90, supra note 545, para. 24.

[586] American Declaration, supra note 63, Articles XVIII, XXVI; American Convention on Human Rights, supra note 61, Article 8(2)(d), (e).

[587] See Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, supra note 272, paras. 148; Advisory Opinion OC-11/90, supra note 545, paras. 25-29; Desmond McKenzie Case, supra note 272, paras. 311-316; Michael Edwards et al. Case, supra note 102, paras. 201-207. See also IACHR, Report on Guatemala (1983) supra note 569, at 95; Report on the Situation of Human Rights in Suriname (1983), OEA/Ser.L/V/II.61, doc.6 rev. 1, 5 October 1983, p. 68. See similarly UNHRC, Lloyd Grant v. Jamaica, Communication Nº 353/1988, UN Doc. CCPR/C/50/D/353/1988 (1994), para. 86 (interpreting Article 14(3) of the Covenant as not entitling an accused to choose counsel who is provided free of charge); Eur. Court H.R., Quaranta v. Switzerland, May 24, 1991, Series A Nº 205.

[588] American Declaration, supra note 63, Article XXVI, American Convention on Human Rights, supra note 61, Article 8(2)(c). See generally IACHR, Report on the Situation of Human Rights in Panama (1978), OEA/Ser.L/V/II.44, doc. 38, rev. 1, 22 June 1978, Ch. IV, p. 116 [hereinafter IACHR, Report on Panama (1978)]; IACHR Report on Colombia (1981), supra note 27, Ch. IV, at 181.

[589] See Castillo Petruzzi et al. Case, supra note 55, para. 139, citing UN Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, UN Doc. A/CONF.144/28/Rev.1 at 118 (1990) [hereinafter UN Basic Principles on the Role of Lawyers], Principle 8. See also IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 115; UN Body of Principles on Detention or Imprisonment, supra note 335, Principles 11, 17; UNHRC General Comment Nº 13, supra note 545.

[590] American Convention on Human Rights, supra note 61, Article 8(3).

[591] See, e.g., IACHR Report on Colombia (1999), supra note 110, Ch. V, para. 97; Annual Report of the Inter-American Commission on Human Rights 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 Rev. 1, September 26, 1986, at 155; IACHR, Report on Guatemala (1983) supra note 569, at 91.

[592] Castillo Petruzzi et al. Case, supra note 55, paras. 153, 154, citing Eur. Court H.R., Case of Barberà, Messegué and Jabardo, December 6, 1998, Ser. A Nº 146, para. 78 and Eur. Court H.R., Bönisch Case, May 6, 1985, Ser. A Nº 92, para. 32.

[593] See, e.g. UNHRC General Comment Nº 13, supra note 545, para. 9; UN Basic Principles on the Role of Lawyers, supra note 589, Article 21 (“It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession and control in sufficient time to enable lawyers to provide effective assistance to their clients.”).

[594] IACHR Report on Peru (2000), supra note 27, paras. 102-105; Castillo Petruzzi et al. Case, supra note 55, para. 172. See similarly Eur. Court H.R., Axen v. Germany, December 8, 1983, Series A Nº 72, para. 25.

[595] American Convention on Human Rights, supra note 61, Article 8(2)(h). See generally IACHR, Report on Panama (1978), supra note 588, at 116; Report on the Situation of Human Rights in Nicaragua (1981), supra note 551, p. 168. See similarly UN Secretary General Report (1993), supra note 189, para. 116 (stating that the right of appeal “is a fundamental element of individual civil and political rights.”); ICTY Statute, supra note 222, Article 25 et seq.; ICTR Statute, supra note 505, Article 24 et seq.

[596] According to the European Court of Human Rights, this requirement arises in part from the fact that “inherent in the very nature of an independent tribunal is the power to give binding decisions that will not be altered by a non-judicial authority.” Morris Case, supra note 572, para. 73.

[597] Castillo Petruzzi et al. Case, supra note 55, para. 161.

[598] Id.

[599] IACHR Report on Chile (1985), supra note 114, Ch. VIII, para. 173.

[600] Constitutional Court Case, supra note 545, paras. 69-70.

[601] As noted in the Part II(A) above, certain international anti-terrorism instruments explicitly stipulate that terrorist crimes as defined under those instruments are not to be regarded as political or related common offenses for the purposes of extradition or mutual legal cooperation. See, e.g., Inter-American Convention Against Terrorism, supra note 8, Article 11.

[602] See generally M. Cherif Bassiouni, Policy Considerations on Inter-State Cooperation in Criminal Matters, in International Criminal Law 3 (2d ed., Vol. II, M. Cherif Bassiouni, ed., 1998).

[603] See, e.g., Model Treaty on Mutual Assistance in Criminal Matters and its Optional Protocol on the freezing and seizing of illicit proceeds, GA Res. 45/117, 68th plenary meeting, 14 December 1990, A/RES/45/117.

[604] See, e.g., UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Dc. E/Conf./82/15 (1988), reprinted in 28 I.L.M. 493 (1989), Article 5; Inter-American Convention Against Terrorism, supra note 8.

[605] See Gerhard O.W. Mueller, International Judicial Assistance in Criminal Matters, in International Criminal Law 41 (Gerhard O.W. Mueller & Edward M. Wise eds., 1965).

[606] See, e.g., US Extradition Act, 18 U.S.C. § 3181 et seq.

[607] Inter-American Convention Against Terrorism, supra note 8.

[608] Id., Article 15.

[609] Paniagua Morales et al. Case, supra note 132, para. 91. See similarly Riofrío Massacre Case, supra note 132, paras. 48-52.

[610] See, e.g., Celiberti v. Uruguay, Comm. Nº R13/56, Report of the Human Rights Committee, UN GAOR, 36th Sess., Supp. No. 40, at 185, UN Doc. A/36/40 (1981) [hereinafter Celiberti, HRC Case]; Humberto Alvarez-Machain v. United States, 266 F.3d 1045 (US Court of Appeals for the 9th Circuit, 2001).

[611] See, e.g., Resolution on the Regionalization of International Criminal Law and the Protection of Human Rights in International Cooperation in Criminal Proceedings, XVth Congress of International Penal Law Association (Sept. 1994); OAS Permanent Council, Resolution II.15.92, opinion of the Inter-American Juridical Committee concerning the situation on Humberto Alvarez Machain.

[612] See, e.g., Annual Report of the IACHR 1976, OEA/Ser.L/VII.40, doc. 5 corr.1, 10 March 1977, pp. 16-18; Annual Report of the IACHR 1980-81, supra note 141, at 120. See similarly Humberto Alvarez-Machain v. United States, supra note 610, at 1050-1053.

[613] See, e.g., Celiberti, HRC Case, supra note 610; Burgos v. Uruguay, Comm. No. 12/52, Report of the Human Rights Committee, UN GAOR, 36th Sess., Supp. Nº 40, at 176, U.N. Doc. A/36/40 (1981); Humberto Alvarez-Machain v. United States, supra note 610, at 1050-1053.

[614] See similarly Castillo Petruzzi et al. Case, supra note 55, paras. 218-219 (holding that if the proceedings upon which a judgment rests have serious defects that strip them of the efficacy they must have under normal circumstances, the judgment will not have the necessary underpinning, namely litigation conducted by law, and therefore cannot stand).