Case Watch: Ensuring that Justice is Not a Charade

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

When you take a case of torture or killing to a human rights court, one thing that you almost always ask is that the government involved should investigate the case and prosecute the perpetrators.  An investigation, a prosecution, a conviction–these are often seen as markers that the state in question is taking the case seriously.

But a couple of recent cases from the European Court of Human Rights have reminded us that investigations and prosecutions are a means to an end, they are not an end in themselves.  That end is accountability–meaningful accountability for the violations committed, which addresses any systemic features that facilitated the abuse and serves as a deterrent to future violations. And sometimes, to achieve proper accountability, you need to look beyond the simple fact of a conviction to see what was really going on.

Two recent rulings by the European Court of Human Rights illustrate the issue, both arising from cases of police abuse—an area of particular interest to the Open Society Justice Initiative's criminal justice program, as well as many groups supported by the Open Society Foundations.

First, the court's recent judgment in Derman v Turkey [pdf] provides a relatively straightforward example. Derman was brutally beaten (including being subjected to falaka, beating on the soles of his feet) to get him to confess to a robbery. Three police officers were convicted of mistreating Derman.

“Great” you might say, “Justice is served”. Not so fast. Each officer was sentenced to just one year imprisonment plus three months ban from public service. This was later reduced to ten months imprisonment, which was then suspended altogether on the basis that the officers were unlikely to reoffend. Unsurprisingly, when the case was referred to the ECHR, the court found a violation of Article 3 (prohibition of torture) because the Turkish courts had in reality rendered the convictions ineffective; and rather than showing that torture could not be tolerated, had worked to minimize the consequences for the perpetrators.

Not every case is so straightforward though. In Enukidze and Girgvliani v Georgia [pdf], four off-duty officers from the Ministry of Interior abducted two men outside a café, brutally beat them, and killed one. An investigation was opened the next day, and the four were ultimately convicted of serious crimes (causing death by unlawful wounding and abduction using life-threatening violence), and sentenced to between six-and-a-half and seven-and-a-half years imprisonment.

But once again, the conviction did not tell the whole story. The two men were abducted outside a café where they had insulted a number of senior Ministry of Interior officials. Yet for the first two months, the investigation was carried out by the Ministry of the Interior. One of the officials who had been insulted was the superior of both the suspects and the investigators. This raised concerns about the conduct of the investigation, where the official story was accepted at face value, various witnesses were not questioned, while the family of the victims alleged that only some of the calls which were made to and from the suspects were ever disclosed.

On top of this, while states should be particularly stringent in punishing abuses or killings by law-enforcement officers to combat the sense of impunity, here the initial sentences did not take into account the cruel nature of the abuse, and these sentences were later reduced by half through a presidential pardon. In finding a violation of Article 2 (right to life, based on the failure to investigate), the ECHR expressed its concern that through the investigation, prosecution, sentence and pardon, the different branches of the state had acted in concert to prevent justice from being done. Not exactly the accountability that four convictions and seven year sentences initially suggested.

The investigation and prosecution of serious human rights violations is a critical step in providing victims with an effective remedy and preventing future abuses. But while it is necessary, it is not always sufficient. We must remember that an investigation and prosecution is only a means to achieve accountability. Neither the interests of the present victims nor the objective of dissuading future violations are served by purely formalistic proceedings where a superficial shell conceals a hollow core. Accountability must be pursued in substance as well as in form.