Browsing articles in "Human Rights"
Nov 1, 2013
PEstrada

Due Process of Law and the President

Mexican indigenous teacher Alberto Patishtán in a press conference after receiving the Presidential pardon for a jail sentence for a crime he did not commit (from La Jornada).

Mexican indigenous teacher Alberto Patishtán in a press conference after receiving the Presidential pardon for a jail sentence for a crime he did not commit (from La Jornada).

Yesterday, Mexican President Enrique Peña Nieto used for the first time his new power to grant the indult to jailed people whose trial was not carried out observing the due process of law. The first beneficiary of this feature was Alberto Patishtán, a Tzotzil indigenous teacher who was sentenced in 2002 to 60 years in prison for being the sole intellectual and material author of the murder of seven policemen. In the press conference just after recuperating his freedom, Patishtán reminded that he always understood that his imprisonment was because of his fight to improve the conditions of his community in the southern state of Chiapas, underscoring his innocence in relation to the crime he was accused of.

In recent years, several cases of an inadequate process of law in trials resulting in unjust and undeserved prison sentences have reached the mainstream Mexican media. In general, these cases illustrate the unequal access to justice in the country and the persistence of failures in the judicial system. Because they are not familiarized with the judicial process and because they cannot hire good lawyers (they are provided with one by the state, but usually these defenders have enormous work overloads), they cannot realize when their individual rights are violated or what to do when that happens. The problem is further deepened when the defendants in question are poor, illiterate, women, indigenous (hence probably not speaking Spanish; the law states that translators must be present at all stages of the trial, but there are not enough of them), and living in remote areas.

Of course, there are judicial channels to review decisions which are suspected to have been made without full respect to constitutional and other legal guarantees. However, these procedures are lengthy, burdensome, and their result is uncertain. For instance, even with support from several human rights organizations and pressures from the media and many politicians, a local court rejected Patishtán’s request to review his sentence (the arguments against his imprisonment were mainly that he was not even nearby the place where the policemen were killed, and that it was very improbable that one single man could have murdered seven highly trained and armed policemen, plus many inconsistencies during the collection and presentation of evidence).

For those reasons it is that the proposal for the Presidential pardon was introduced and approved. It will be able to be used when there is evidence of gross human rights violations, when it is clear that the person in question does not represent a threat to the public order, and when no grave federal crimes (treason, espionage, terrorism, sabotage, genocide, drug trafficking, raping, or kidnapping) are committed. All the conditions being met, Patishtán was an acceptable candidate to receive the Presidential indult, and now he is free again.

Alberto Patishtán stopped serving time in jail for a crime he allegedly did not commit thanks to a legal reform that allowed the President to intervene. Has justice been made? When asked in a press conference if he was going to demand the reparation of the damage, Patishtán hinted that he will not. His first goal, he said, was to recuperate his health (he is receiving radiotherapy to attend a brain tumor) and to continue working for his community. So, no one will pay in whatever form (jail or administrative admonition) for the mistakes that were made in his case. It can be expected that more people will be benefitted by the measure, although it must be noticed that many of cases similar to that of Patishtán could not be getting the same media attention and public pressure to revert an inadequate sentence. At all times, however, mistakes of the judicial system will be corrected on a case-to-case basis, as opposed to enhancing its capacities and procedures to reduce or prevent the number of abuses being committed. Certainly, a tool to help particular persons who suffer human rights abuses in their trials is a major improvement, but the larger goal, the amelioration of the functioning of the judicial system, must not be lost.

Other
Oct 25, 2013
PEstrada

Spain: Grave Crimes, Human Rights, and Justice

Flyer distributed (from BBC).

Flyer distributed against the liberation of ETA member Inés del Rïo, following a ruling of the European Human Rights Court. The document reads: “This assassin will be free. Inés del Río Prada murdered 23 people, among them 12 civil guards. Sentenced to 3,826 years in prison. She still had to serve many years” (from BBC).

On October 21, the European Human Rights Court ruled against what in Spain is known as the Parot Doctrine. This decision came after Inés del Río, member of the terrorist group ETA serving 30 years in prison for 23 murders during the 1980’s, filed a complaint at the Court arguing that the Spanish government illegally retained her in jail while she had met the requirements to receive an advanced liberation. With the Court’s ruling Del Río has been set free, other criminals (including ETA members, homicides, and rapists) face a similar prospect, and the Spanish society’s indignation grows by the hour.

The Parot Doctrine refers to the decision made in 2006 by the Spanish Supreme Court to prevent the early liberation of serious criminals. It is thus named because its inception was in relation to the case of ETA member Henir Parot. Parot was accused of a terrorist attack in which 11 people died, and was sentenced to more than 100 years in jail; however, he would only serve 30 years in prison, the maximum time allowed by the country’s codes. Furthermore, inmates have the right to reduce their sentence in one day for each two days of labor in the prison. With this benefit, Parot managed to decrease his punishment to 16 years. When he was about to be liberated, the Supreme Court made the decision to keep him in jail for the whole 30 years he was originally expected to serve. The ruling said that sentence reductions were applicable to individual sentences (one for each murder, plus that for committing terrorism and other accusations), but that the maximum time in jail was untouchable. This ruling was extended to all the cases involving dangerous criminals.

Inés del Río was sentenced for 3,800 years in jail; the maximum-term rule reduced it to 30 years. Work in prison reduced her punishment to 21 years, so she would have been put in liberty in 2008. However, the Supreme Court used the Parot Doctrine to keep her in jail for the 9 remaining years of her original sentence. Similarly, in 2012 the Spanish Constitutional Court validated the application of the Doctrine to three individual cases (as opposed to making a more general statement, such as accepting the legality of the Doctrine, as some analysts have commented) of imprisoned ETA members who, like Del Río, demanded their right to early liberation. Hence, the initial ruling on the Parot case effectively seemed to have become a doctrine.

However, Del Río filed a complaint at the European Human Rights Court, which in 2012 resolved that Spain had applied the Parot Doctrine retroactively against her and sentenced the government to pay a 30,000 euros fine and to release her as soon as possible because maintaining her imprisoned was irregular. The Spanish government contested this, arguing that without the doctrine dangerous criminals would be free on the streets without having served their time in prison and without having obtained social rehabilitation. In the particular case of Del Río, the government insisted that as her original sentence was 30 years, not liberating her after gaining a reduction to 21 did not represent an extension of the punishment, as her lawyers complained.

But the European Human Rights Court ruling earlier this week was harsher: it reiterated the rapid release of Del Río, left no opportunity for further contestation by the Spanish government, and declared that its decision set precedent for other people in jail under similar circumstances. The next day, on October 22, Del Río was finally liberated.

The Spanish government now tries to prevent the extension of the European Human Rights Court decision on Del Río, but three days after the judgment was made it seems to be losing its cause. For instance, a rapist in Catalonia left jail on Thursday, directly benefitting from the Court’s ruling. Other terrorists and criminals are waiting their turn. The government, including Alberto Ruiz Gallardón, the Minister of Justice, has argued that the Parot Doctrine has been useful in fighting terrorism and has been just with its victims and their relatives. Furthermore, some have expressed a fear that ETA, which has been officially defeated, could try to re-organize itself after some of its members are set free (the government is confident that the terrorist group’s neutralization is final and that it will not re-emerge). This week-end several demonstrations by terrorism victims are expected throughout the country rejecting the Human Rights Court’s ruling. In a rare gesture, top politicians of the ruling conservative Popular Party said they will join them.

The European Human Rights Court’s decision appears to have forced to defend the rights of serious criminals at the expense of the rights of their victims and of the larger objective of justice. It does not necessarily have to be like that; for sure, even those in jail have rights that must be respected at all times and should not be subject to special law regimes; in this way the larger objective of justice is also served. At the same time, the sensitiveness of the topic expectedly creates frustration, anger, fear, and disappointment among the victims of criminals. Who guarantees that they will not try to attack again their previous victims? How to ensure they do not commit more heinous crimes? Is it fair (or, to put it differently, does it make sense) that a person who killed tenths of people barely spends two decades in jail (less than one year per murder)? With its ruling, the European Human Rights Court demanded Spain to ensure everyone’s rights are respected. Consequently, and in respect for the victims’ rights, the Spanish government must also review its legislation, in particular the Parot Doctrine, to ensure that criminals receive the punishment they deserve.

Oct 19, 2013
PEstrada

Firmness and humanitarianism

Leonarda Dibrani and one of her siblings, part of a Roma family expelled from France ten days ago (from Le Monde).

Leonarda Dibrani and one of her siblings, part of a Roma family expelled from France ten days ago (from Le Monde).

Ten days ago, the French government expelled to Kosovo, their home place, a Roma family, the Dibranis, comprising both parents and five children, all of them, except for a 17-months old baby, in school age. The eldest daughter of the Dibranis, who were living on the eastern department of Doubs, was allowed to stay in France because she is of legal age, married a French citizen with whom she has a child, and acquired the French nationality. The reason for the expulsion was that the head of the family, Resat, did not show “a real will to integrate to the French society”. The authorities deemed that, as he was the support for his wife and children, they could not stay in France if he was expelled, so they were also sent back to Kosovo.

The situation of one of the Dibranis daughters, Leonarda, has received particular media attention because allegedly she was arrested after being forced to descend from the school bus on its way to begin the day’s classes. The government has tried to explain this is not exactly what happened, as Leonora was not in sight of her schoolmates when the detention took place, which would have been humiliating for her. At the same time, authorities acknowledged that they could have made a better choice about the time and place to conduct the detention. So strong has been the pressure on the case of Leonarda that a report was published on the specific conditions of her arrest. Furthermore, President François Hollande issued an authorization so Leonarda, but not her siblings or parents, can return to France to continue her studies. Expectedly, she has said she does not want to go back without the rest of her family.

It is worth noticing that what attracted attention was rather the form in which Leonarda was arrested, instead of the fact that she and her family were expelled from France. For instance, a poll cited by the newspaper Le Monde (a representative sample surveyed by means of telephone interviews and internet questionnaires) mentions that 65% of the French would oppose the return to France of the Diabranis and that three quarters of the French support the government’s stance on the case (this is, not reversing the expulsion decision).

The question appears to be whether France (and, for that matter, other countries in Europe) are witnessing the emergence of xenophobia or, at least, aggressive sentiments towards foreigners living in their countries. On the one hand, as could be suggested by the poll, the majority of the French does not seem to show sympathy towards the Dibrianis. On the other hand, the family had not right, in a strict sense of rules defined by a country’s codes, to be in France. Resat Dibrani had requested asylum for him and his family; authorities mentioned that given his inability to integrate to the French society (naming as examples his refusals to find an interpreter when dealing with government officials, a bad maintenance of their apartment, insults to social service workers, lack of a serious search of employment, and frequent school absences of his children), he could not be part of it. According to this latter perspective, he had his attempt, failed it, and had to leave, all within the respect to the law.

Furthermore, President Hollande has explained that the decision to expel the Dibranis from France was made trying to balance two fundamental concerns in the fight against illegal immigration. First, firmness in respect to the law; no authority exceeded its capacities of action regarding the case. Second, humanism; it was acknowledged that stopping the school bus to arrest Leonarda was not the best choice, for which she has been granted the permission to return to France alone.

It is very difficult to conclude from one case if xenophobia or displease of foreigners is emerging in France. The relative lack of support to parties and politicians who are for those ideas, such as Marie Le Pen, would indicate that such is not the case. Furthermore, if someone breaks the law, citizens expect that person to receive the corresponding sanction. But if the case in question is related to groups that suffer marginalization, it is very easy to rise suspicions about its impartiality.

Oct 10, 2013
PEstrada

Freedom on the Internet

On October 3, Freedom House published the 2013 edition of its Freedom on the Internet report (http://www.freedomhouse.org/report/freedom-net/freedom-net-2013). The most relevant finding is that of the 60 countries included in the study, 34 saw a decline in internet freedom, including three classified as democracies: India, Brazil, and the U.S. Furthermore, ten different types of government internet control were identified. These are: blocking and filtering contents, cyberattacks against regime critics, new restrictive laws, paid government commentators, physical attacks and murder, surveillance, takedown and deletion requests, social media blockings, intermediary liability for published contents, and throttling or shutting down the service. In spite of this environment, the report also notices that internet users are finding more creative ways to evade or neutralize governmental control efforts.

The index used for this report is slightly different than that of the better-known freedom scores. Here, a battery of 21 questions was applied to the countries under study. The questions were divided into three sub-groups: obstacles to access (infrastructure, economic, legal, or governmental barriers), limits on contents (censorship or manipulation, extent of contents diversity, and usage for political activism), and violation of user rights (legal provisions, surveillance and violations on privacy, and repercussions for online activity). Respectively, the maximum number of points for each category is 25, 35, and 40. They add up to a maximum of 100, meaning the worst situation possible for internet freedom. Conversely, a score of 0 is the best situation possible for internet freedom. Countries with a score between 0 and 30 are classified as “Free”, between 31 and 60 as “Partly Free”, and between 61 and 100 as “Not Free”.

There are two trends that are worth noticing. First, the third category, violation of user rights, is the one in which countries tend to have the highest score. This is true for non-democracies, such as Russia and China (with a score of 25 and 38 for this item, respectively), and for democracies, such as the U.S. and the U.K. (with a score of 12 and 16 for this item, respectively). This could suggest this kind of internet freedom violation is the easiest to exercise. Some reasons for this could include the arguable easiness with which surveillance can take place or the large number of pretexts that can be used to break users’ privacy (most notably national security). Furthermore, user agreements for some services could require users to surrender some of their privacy without them knowing because they do not read the agreement.

Another relevant trend is that there seems to be a correlation between the internet freedom scores and internet penetration. Larger scores (or a worse situation of internet freedom) tend to be found in countries with low internet penetration, and smaller scores (or a better situation of internet freedom) tend to be found in countries with large internet penetration. The reason for the association could be the presence of a third variable affecting both internet freedom scores and internet penetration: government control over the internet. If a government restricts internet access, placing high barriers to use the service (with high fees or insufficient telecommunications infrastructure) and hence offering a selected access, it is easier for it to monitor users’ activities. On the other hand, if it places relatively low obstacles to access it, a government could be little interested in checking its users. Hence, government-permitted accessibility seems to be a major predictor of internet freedom.

These two observations, the vulnerability of users’ rights and the possibility of the degree of government controlling internet access predicting freedom in the internet, move to pose the question of what role should governments have in relation to the net. Whether or not governments should actively promote, or even offer, internet access is a question related to the scope of state’s activities: in some countries such a task will be left to the market, and in others the state will have a larger role. In any case, more internet is thought to be related with more access to independent sources of information, more freedom, and more democracy. What is more, some organizations advocate the existence of a right to access internet, and push governments to ensure its full realization. Additionally, there is no doubt that the internet is a “place” where it is relatively easy to commit a wide variety of crimes; hence, governments should also have the capacity to prevent and investigate them. But, as noted above, this is an argument with which governments diminish internet freedom, even in democratic regimes.

For the time being, the question remains open. As in most other aspects of the public life, there is no immediate or definite answer on what role the government should have on the internet. Freedom House’s current task of identifying the ways in which governments violate internet freedom could shed some light on this issue.

Sep 18, 2013
PEstrada

The Island

 

Yesterday, Cuban dissident Jorge Luis García Pérez, also known as Antúnez, participated in a dialogue with Georgetown University students as part of his visit to the United States in his first tour abroad. His objective was to share with the scholar community his vision on how to improve the lives of Cubans.

Beginning at age 25, Antúnez spent 17 years in prison for saying that Cuba was not a utopia, but a dystopia. During that time he suffered physical and psychological abuses, which were exacerbated when he went into hunger strikes to protest against the way he was being treated, the reason of his confinement, or as a token of solidarity with other political prisoners. His greatest worry there was not to lose the necessary strength to keep resisting the life in jail and the lack of freedom in Cuba.

Upon leaving jail, Antúnez wanted to share his story (not so different from that of other prisoners) with other Cubans so they could know what the reality of the country was. With severe restrictions to the press, internet accessibility, or the right to association, it is not easy to get a grasp of what the past or current reality looks like in the island. The experience of reality is quite subjective, but the Cuban government has distorted this truth by imposing its own views to the inhabitants of the country. For Antúnez, there lays the central pillar of the Communist government in Cuba and an opportunity to bring it down. Without sufficient or correct information, he argues, people inside and outside of the island are not aware of the everyday problems and inequalities in the country, hindering the organization of an opposition to the regime. The only way to get proper education, medical attention, or a job is my manifesting adherence to the party. If not, mediocre services, if any, will be received. As well, controls over the media and communications prevent stories or arbitrary detentions and police abuses to be known to Cubans and to the rest of the world. If information is spread, Antúnez concludes, then people would be aware of the critical situation in Cuba and they could prompt for a change.

Antúnez acknowledges that the essence of the problem in Cuba is political, for which any eventual solution must also be political (as opposed to an economic embargo). Spreading information and going out to the streets to contest the abuses of the regime aims at the political nature of the problem. He also notices that the regime is not ready to peacefully defend itself, but is ready to violently react to any opposition it receives. Hence, attacking it in one of its vulnerable points by organizing civil resistance actions can substantially contribute to its demise.

In the end, Atnúnez’s invitation to his audience at Georgetown was straightforward: spread information about Cuba and the abuses suffered by its citizens at the hands of the government. So simple a task it might seem, it indeed can make a huge difference in a country in which the flow of information is controlled by the state. Antúnez will continue striving for this objective by meeting with other government officials and NGOs in the United States.

Pages:«1234567...22»
Founded in 2004, Democracy and Society is a biannual print journal published by the Center for Democracy and Civil Society at Georgetown University. The D&S Blog provides web-only content, including special reports and investigative series, on issues relating to democracy and development.

Email Subscription to D&S and Blog

* indicates required

Posts by Region

Posts by Topic

Switch to our mobile site