Recent ECHR Decisions Highlight Continued Problem of Impunity

Situations of impunity arise when a State fails to adequately investigate and prosecute serious crimes affecting individuals’ human rights.  In many countries in the world, a lack of sufficient resources or training, attacks against law enforcement and the judiciary, discriminatory attitudes and/or official corruption contribute to high levels of impunity – such as in Guatemala, where an estimated 98% of crimes went unpunished before the United Nations and Guatemalan government established an independent body to support investigations and prosecutions (CICIG).

The Parliamentary Assembly of the Council of Europe  has suggested the creation of guidelines and an independent committee to tackle impunity in its 47 Member States, in light of its Resolution 1675 (2009) which recognizes the need to combat impunity for serious human rights violations.   The Draft Guidelines on Eradicating Impunity for Serious Human Rights Violations lay out a number of principles aimed at preventing human rights abuses by State agents and allowing the effective investigation and prosecution of crimes affecting human rights.  The Committee of Ministers, the COE body responsible for overseeing implementation of the decisions of the European Court of Human Rights, has also called the eradication of impunity a “priority” for Europe.

A number of prominent human rights organizations have expressed concern over the Draft Guidelines, however, stating that:

the Guidelines, in their current form, do not fully reflect the full range of international legal obligationsby Council of Europe Member States on issues such as immunities, obligations to establish jurisdiction over serious human rights violations, or the duty to cooperate with international tribunals and courts. In particular, we consider that Council of Europe and other international standards require strengthening of the Guidelines in two respects. These relate, first, to the treatment of the related issues of command responsibility and superior orders; and second, to the problems of impunity caused by amnesties, time-bars and pardons.

The human rights considerations raised by granting amnesties or pardons, or otherwise excusing State agents’ crimes because they were following orders, have been debated in many countries following periods of dictatorship or internal conflict.  For example, last month in Jularic v. Croatia, App. No. 20106/06 (January 11, 2011) the European Court of Human Rights held that Croatia was internationally responsible for failing (once it became a party to the European Convention in 1997) to properly investigate the death of the applicant’s husband at the hands of paramilitaries in 1991, a time of intense conflict.

The Inter-American Court of Human Rights has issued a number of judgments concerning situations where States enacted amnesty laws to protect military and other agents from criminal prosecution for brutal counter-insurgency or anti-opposition tactics, such as in Peru and Chile. See, e.g., Case of Barrios Altos v. Peru, Series C No. 75 (Judgment of March 14, 2001).  Just last year, the Inter-American Commission on Human Rights reiterated its stance against amnesty laws when Honduras passed a law preventing prosecution of crimes connected to the 2009 coup d’etat, and referred the case of Gelman and Others v. Uruguay, Case No. 12.607 to the Inter-American Court for consideration of Uruguay’s amnesty law.  See the Domestic Prosecutions and Civil Suits section of this site for additional information.

However, impunity also continues to be a problem in every day instances of State failure to adequately investigate murders and other violent crimes. Recently, in Dimitrova and Others v. Bulgaria, App. No. 44862/04 (Jan. 27, 2011), the European Court of Human Rights held that, in failing to adequately investigate the death of a young man of Roma origin, Bulgaria was internationally responsible for a violation of Article 2 (right to life) of the European Convention on Human Rights, but not of Article 14 (non-discrimination).  The court’s analysis focused on irregularities in the investigation and lack of communication with the applicants, the victim’s family.

As summarized in its press release, the Court held:

…the Court found that the investigation had been ineffective, in particular, because of the following reasons. Crucial evidence collected during the investigation had been disregarded. In particular, the investigation had established four wounds on Georgi’s head while the authorities had accepted that he had been only hit once as contended by the alleged culprit, B.I. In addition, Georgi’s companions had alerted the police to the incident, while B.I., despite submitting he had acted in self-defence, had gone into hiding together with his friends and had never reported the alleged attack to the police. The investigation had also failed to explain why B.I. and his three companions had deliberately driven to the place where Georgi and his friends had been at the time. Consequently, the authorities had not carried out a thorough and objective analysis of the evidence collected during the investigation.

A number of other deficiencies in the investigation were identified. In particular, B.I.’s companions had never been investigated; the prosecutor’s decision to drop the initial charges against B.I. had been based on the witness statements favourable to him which had never been verified. No attempt had been made to explain inconsistencies in B.I.’s submissions. The applicants had not been given the opportunity to effectively participate in the investigation; they had not even been formally notified of its outcome.

Consequently, the Bulgarian authorities had failed to investigate effectively Georgi Gerasimov’s death. There had, therefore, been a violation of Article 2.

The Court held that there had been no violation of Article 14, as it could not establish that the Bulgarian authorities’ failure to properly investigate Georgi’s death had been the result of racial prejudice.

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