Global Human Rights Defence

Inter-American Commission of Human Rights determination of violation of the rights to a fair trial by Argentina

João Victor Stuart

LLB Federal University of Rio de Janeiro, Brazil. 

GHRD Intern (International Justice and Human Rights Team)

On the 9th of April 2021, the Inter-American Commission of Human Rights sent the case of Guillermo Antonio Álvarez v. Argentina to be judged by the Inter-American Court of Human Rights. Before sending a case to the Court, the Commission needs to assess and attest if the state committed human rights violations. It does that by conducting an investigative process that takes the      form of a document called “Merit report”. If the Commission convinces itself that one or more rights of the American Convention on Human Rights were breached by the state, it will include recommendations for the state to halt the violations (Merit Reports, 2020). However, the Commission can also refer the case to the Inter-American Court so that it can decide whether or not the State should be punished for the violations committed in its territory. In the present case, the Inter-American Commission of Human Rights decided to send it to the Inter-American Court of Human Rights because the Commission found that      Argentina breached several provisions of Articles 8 and 11 of the American Convention on Human Rights. This convention      guarantees different dimensions of the rights to a fair trial (Inter-American Commission of Human Rights, 2016).

According to the conclusions of the Inter-American Commission, Guillermo’s rights to a fair trial were violated during a criminal proceeding. This trial analysed the crimes of homicide and robbery committed between July 27 and 28, 1996 (Inter-American Commission of Human Rights, 2016). On October 28th1999, the domestic Argentinian Court sentenced Guillermo to “a single penalty of life imprisonment, plus the accessory penalty of imprisonment for an indeterminate time to be served, legal accessories and costs” (IACHR Refers Case on Argentina to the Inter-American Court, 2021, parag. 2). The defendant appealed this decision and there were other extraordinary appeals filed against it during the rest of the proceeding, but the sentence was confirmed by the Appellate Court (IACHR Refers Case on Argentina      to the Inter-American Court, 2021).      The Commission attested that the principal breaches of human rights guarantees occurred during the criminal proceedings. Before the date of his trial, Guillermo rescinded the power of the attorney that had been nominated by the domestic court to represent him. 

When Guillermo requested to designate his defender, a right secured by article 8(2)(d) of the American Convention on Human Rights, it was denied by the court. Instead, the court determined that the Official Public Defender would be the legal representative of Guillermo in the trial. The Commission stressed that, in addition to ignoring Article 8 of the American Convention, the Argentinian judges nominated the Official Public Defender only a few hours before the beginning of the trial (Interamerican Commission of Human Rights, 2016). The Commission’s merit report indicates that the case was complex and extensive, with sixteen volumes, each one with 200 pages, and several accumulated files (Inter-American Commission of Human Rights, 2016). Because he was nominated hours before the trial,       the Public defender did not have enough time to study the case and to communicate privately and freely with Guillermo to build an effective strategy of defence with him. For these reasons, the Court’s decision violated Guillermo’s right to use adequate time and means to prepare his defence, breaching Article 8(2)(c) of the American Convention on Human Rights. 

The petitioner also alleged that his rights outlined in Articles 8 (1) and 8(2)(g) and (f) of the American Convention were violated since the way the defender was appointed by the Court did not allow him to prepare a proper examination of the witnesses and expert witnesses summoned. Therefore, the Argentinian Court did not respect the interests of the alleged victim (Inter-American Commission of Human Rights, 2016). The lack of adequate time did not allow the accused to be heard and to provide substantial defence, which is part of the process of building a defence. 

Moreover, Guillermo also alleged a violation of articles 8.2(h) and of Article 11.1 in his petition to the Inter-American Commission. Regarding article 11.1, the petitioner described that he stayed handcuffed during the entire trial, which prevented him from      taking      notes on      the events of the proceeding. Denying the chance for the petitioner to make notes about the trial to help him to elaborate his defence goes against the principle of presumption of innocence, which violates Guillermo’s dignity (Inter-American Commission of Human Rights, 2016). When it comes to article 8.2(h), the petitioner claimed that the Argentinian higher Courts did not entirely examine the merits of his appeal against the first domestic decision, ignoring petitioner’s right to appeal. Lastly, he alleged violation of the right outlined in Article 8.2 (e) of the American Convention.           The National Chamber of Criminal appeals, the Argentinian Court responsible for examining the appeals used by Mr. Alvarez to question the first decision, appointed an official defender to support him during the proceedings at this Court. However, according to Mr. Alvarez, this professional did not use the necessary and adequate procedures to comply with his      intent of appealing the judgement of      this Chamber and trying to change its final decision that confirmed the verdict against Mr. Alvarez (Inter-American Commission of Human Rights, 2016).  

Source: Australian Human Rights Commission – https://humanrights.gov.au/our-work/rights-and-freedoms/fair-trial-and-fair-hearing-rights 

The State of Argentina replied to the accusations almost seven years after the complaint to the Inter-American Commission. Firstly, it affirmed that Mr Álvarez was handcuffed because he had tried to run away multiple times. The State added that it took a completely independent procedure, which explains why it did not breach article 11.1 and the principle of presumption of innocence (Inter-American Commission of Human Rights, 2016). 

Regarding the issue of the inappropriate appointment of a Public Defender only a few hours before the trial, the Argentinian authorities said that it did not constitute a violation of Mr. Álvarez’s right to name his defender. They explained that the Court granted him a new defender because he rescinded the power granted to the previous defender on a date very close to the trial. (Inter-American Commission of Human Rights, 2016). Therefore, according to the State, the appointment of the Public Defender was part of an emergency attempt to preserve the right to legal representation of the petitioner; and thus      not an attack against his rights to a fair trial. The state further alleged that the Public Defender nominated had been previously acquainted with the case, which would prove that she was aware of      Álvarez’s situation. It added that under the Argentine Criminal law, this situation does not allow a postponement of the hearing. Lastly, the State of Argentina affirmed that all legal remedies at disposal of the petitioner were thoroughly assessed and processed (Inter-American Commission of Human Rights, 2016). 

In its merit report, the Inter-American Commission of Human Rights supported the petitioner’s claims about the lack of time and means to prepare an adequate and effective defence(IACHR Refers Case on Argentina to the Inter-American Court, 2021). It attested that after Guillermo dispensed with his previous defender, the court did not grant him enough time to name a new one. Instead, it nominated a defender by its own choice, without having consulted the petitioner, although the Inter-American system authorizes the victim to choose the defender. As this appointment occurred on the same day that the trial hearing was supposed to begin, the victim was able to meet with the public defender only one hour before the hearing. It prevented them from “communicating freely and privately     ” (OHCHR     , n.d.). 

Moreover, Rule 67(A) of the Rules of Detention of the Yugoslavia Tribunal provides that “each detainee shall be entitled to communicate fully and without restraint with his defence counsel, with the assistance of an interpreter where necessary” (     International Criminal Tribunal for the Yugoslavia, 1995, p. 21). Both sources demonstrate the state violating the person’s right to seek legal assistance. This is done by disproportionately constraining the access of the victim to a lawyer in some way. In the present case, the State of Argentina committed two violations. The first was its denial for the victim to nominate his lawyer represents an illegal constraint. Second was the delay of the Court in appointing a Public Defender. It is legally mandatory to appoint one less than 24 hours      before the beginning before the trial.      

The Commission also noticed other irregularities during the criminal proceeding that compromised Guillermo’s right to an effective defence. It said that Guillermo’s claims regarding the refusal of Argentinian Courts to examine      his appeal were legitimate. It shows that the Argentinian judges did not correctly assess the appeals, which negatively affected his right to have an efficient defence. The right to appeal is the only way in which a person can alert the State about possible injustices in a previous decision by other independent judges. For that reason, judges are responsible for deploying a thorough examination of the case to attest if the questioned decision surpasses legal limits (The Right to Appeal, n.d.). Despite the multiple deficiencies in Guillermo’s defence had been appealed, Argentinian Judicial authorities were not effective in remedying the violations against Mr. Alvarez’s rights to a fair trial. (IACHR Refers Case on Argentina to the Inter-American Court, 2021). 

Furthermore, the Commission agreed that      Guillermo being handcuffed during the entire trial harmed his presumption of innocence because the state cannot over restrict the basic rights of people, such as the right to liberty, unless it refers to an absolute necessity (The Right to a Fair Trial, 2018). In Guillermo’s case, the restriction of his liberty was disproportionate to the case, as he was handcuffed in a room with several police agents, reducing his abilities to write down and plan his defense.  

Lastly, the Commission concluded that the life-imprisonment penalty issued by the Argentinian Court was disproportionate and contrary to the purpose of re-socialization. It explained that, according to the provisions of the Argentinian criminal law, Guillermo would have to spend at least 30 years in prison. However, given that the sentence review model in cases of life imprisonment is not periodic, Guillermo would not have the elements of his imprisonment reviewed by a judge in at least 20 years. Thus, it would not be possible to determine whether he should be kept in prison or not. 

In conclusion, the Inter-American Commission of Human Rights decided to hold the State of Argentina responsible for violating articles 5(6), 7(3), 8(1), 8(2)(c), (d), (e), (f), (h) and (f), 24, and 25 of the American Convention to the detriment of the petitioner, Guillermo Antonio Álvarez, this decision issues recommendations but it is not yet legally binding. Nevertheless, the Commission transferred the case to the Inter-American Court. It means that the Commission understands that the case deserves a deep examination by the Court so that it can grant a mandatory decision that will help the enforcement of the measures to eliminate the human rights violations, if the Court also determines that they occurred. 

The Inter-American Commission of Human Rights

The Inter-American Commission of Human Rights is an autonomous organ of the Inter-American System of Human Rights protection, whose mission is to promote and protect human rights in the American hemisphere. The OAS created the Commission in 1959 and it has its headquarters based in Washington D.C, USA. The IACHR focuses on the promotion, observance, and protection of human rights and serves as a consultative organ of the Organization in these matters. Its work rests on three pillars: The individual petition system, the monitoring efforts on      the human rights situation in the Member States, and the attention devoted to priority thematic areas. 

Source: Opera Mundi – https://operamundi.uol.com.br/historia/28623/hoje-na-historia-1948-assinada-criacao-da-organizacao-dos-estados-americanos 

BIBLIOGRAPHY

IACHR refers the case on Argentina to the Inter-American Court. (2021, April 9). Inter-American Commission of Human Rights. https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/090.asp 

ICTY – International Criminal Tribunal for the Yugoslavia. (1995, April). UNITED NATIONS DETENTION UNIT REGULATIONS FOR A DISCIPLINARY PROCEDURE FOR DETAINEES. United Nations. https://www.icty.org/x/file/Legal%20Library/Detention/IT97UNDU_disciplinary_rev1_en.pdf 

Inter-American Commission of Human Rights. (2016, June). REPORT No. 55/16 PETITION 4949–02https://www.oas.org/en/iachr/decisions/2016/ARAD4949-02EN.pdf 

OHCHR – United Nations Human Rights Office of the High Commissioner. (n.d.). THE RIGHT TO A FAIR TRIAL: PART I – FROM INVESTIGATION TO TRIAL. Retrieved April 27, 2021, from https://www.ohchr.org/Documents/Publications/training9chapter6en.pdf 

The Right to a Fair Trial. (2018, September 24). Fair Trials. https://www.fairtrials.org/right-fair-trial#the-presumption-of-innocence 

The right to appeal. (n.d.). Courts and Tribunals Judiciary. Retrieved April 27, 2021, from https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/jud-acc-ind/right-2-appeal/ 

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