Abstract
The chapter discusses a number issues concerning the application of international rules on the right to liberty and security, e.g. in relation to enforced disappearances and extraordinary renditions; the right to a fair trial, which is connected to a series of other human rights, e.g. the right of access to justice; and the principle of no punishment without law, which requires compliance with the principle of non-retroactivity of criminal norms and raises problems in relation to the repression of international crimes.
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Notes
- 1.
See clause 39.
- 2.
Appl. no. 37048/04, para 52 of the judgment.
- 3.
See Article 14(2) ARSIWA: “The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation”.
- 4.
Grand Chamber, judgment of 23 February 2017, De Tommaso v. Italy, appl. no. 43395/09, para 80.
- 5.
See Chap. 3, Sect. 3.7.
- 6.
ECtHR, judgment of 16 April 2019, Alparslan Altan v. Turkey, appl. no. 12778/17, para 103.
- 7.
See Article 5(2), (3) and (4).
- 8.
See para 181 of the judgment.
- 9.
- 10.
In this regard, see the ECtHR’s judgment of 10 February 2011, Dudarovy v. Russia, appl. no. 5382/07, para 113.
- 11.
This approach was followed by the ECtHR in its judgment of 24 May 2011, Association “21 December 1989” and Others v. Romania, appl. no. 33810/07, in which the Court found that the respondent State had breached its obligation to conduct adequate investigations “in view also of the importance to Romanian society of knowing the truth about the events of December 1989”, relating to the well-known 1989 uprising: para 194.
- 12.
Appl. no. 39630/09.
- 13.
See Chap. 7, Sect. 7.6.2.
- 14.
Appl. no. 44883/09.
- 15.
See Chap. 3, Sect. 3.9.
- 16.
Appl. no. 49933/20.
- 17.
See appl. no. 50824/21.
- 18.
Judgment of 12 July 2001 rendered in the case of Ferrazzini v. Italy, appl. no. 44759/98, para 29.
- 19.
See the judgment of 8 June 1976, Engel and Others v. The Netherlands, appl. nos. 5100/71 and others, para 82.
- 20.
For a more recent confirmation of this approach of the Court, see the judgment of 10 December 2020, Edizioni Del Roma società cooperativa a.r.l. and Edizioni Del Roma s.r.l. v. Italy, appl. nos. 68954/13 and 70495/13, paras 39 ff.
- 21.
ECtHR, judgment of 4 March 2014, Grande Stevens and Others v. Italy, appl. no. 18640/10 and others, para 221, on the application of Article 4 of Protocol No. 7 to the ECHR.
- 22.
ECtHR (Grand Chamber), judgment of 15 November 2016, A and B v. Norway, applications nos. 24130/11 and 29758/11, para 122.
- 23.
Article 50 CFREU provides that: “No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”.
- 24.
For this distinction, see Italian Court of Cassation judgment no. 33564 of 24 July 2019, para 2 of the conclusions on points of law.
- 25.
Appl. no 18357/91, para 40 of the judgment.
- 26.
See Chap. 7, Sect. 7.6.1.
- 27.
In this regard, see the previously mentioned judgment the ECtHR (Grand Chamber) judgment of 21 November 2001, Al-Adsani v. The United Kingdom, appl. no. 35763/97.
- 28.
ECtHR (Grand Chamber) judgment of 18 February 1999, Waite and Kennedy v. Germany, appl. no. 26083/94, para 68.
- 29.
ECtHR (Grand Chamber) judgment of 11 June 2013, Stichting Mothers of Srebrenica and others v. The Netherlands, appl. no. 65542/12, para 164.
- 30.
In this regard, see IACtHR judgment of 16 February 2021, Cordero Bernal v. Peru, para 72.
- 31.
See appl. no. 5312/11, paras 125 ff.
- 32.
See CCPR/C/GC/32, para 30.
- 33.
In this regard, see the considerations of the Grand Chamber of the ECtHR in its judgment of 13 September 2016, Ibrahim and Others v. The United Kingdom, appl. nos. 50541/08 and others.
- 34.
On this aspect affecting the fairness of the proceedings, see the ECtHR judgment of 24 January 2019, Knox v. Italy, appl. no. 76577/13.
- 35.
On the current function of general principles of domestic law, see Chap. 3, Sect. 3.3.
- 36.
Article 49(3).
- 37.
In this regard, see the judgment of 17 May 2010 adopted by the ECtHR (Grand Chamber), Kononov v. Latvia, appl. no. 36376/04, para 185.
- 38.
See the judgments of the Grand Chamber of 8 September 2015, C-105/14, and 5 December 2017, C-42/17, respectively.
- 39.
See para 61 of the judgment.
- 40.
See ECtHR (Grand Chamber), judgment of 17 September 2009, Scoppola v. Italy (No. 2), appl. no. 10249/03, para 100.
- 41.
Appl. no. 66655/2013, para 66 of the judgment.
- 42.
See Use of the “Blanket Reference” or “Legislation by Reference” Technique in the Definition of an Offence and the Standards of Comparison between the Criminal Law in Force at the Time of the Commission of the Offence and the Amended Criminal Law, request no. P16-2019-001.
- 43.
See Chap. 4, Sect. 4.1.
- 44.
Applications nos. 34044/96, 35532/97 and 44801/98.
- 45.
ECtHR (Grand Chamber), judgment of 18 July 2013, Maktouf and Damjanović v. Bosnia and Herzegovina, appl. nos. 2312/08 and 34179/08, para 72.
- 46.
On the recent application of Article 7 ECHR to a case concerning international crimes committed, through both acts of commission and omission, by a high-ranking Croatian police officer against Serb prisoners during the international and non-international armed conflicts in the former Yugoslavia, see ECtHR judgment of 20 January 2022, Milanković v. Croatia, appl. no. 33351/20.
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Pustorino, P. (2023). Right to Liberty and Security, Right to a Fair Trial and Principle of No Punishment Without Law. In: Introduction to International Human Rights Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-563-8_8
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