The Indian Supreme Court cited an Amnesty International report when it noted the arbitrary nature of death penalty application. The Court said that “extremely uneven application of [the ‘rarest of the rare’ formulation] . . . has given rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle.” The Court also noted the UN General Assembly moratorium resolution, as well as the general worldwide trend of avoidance of the death penalty, particularly in Nepal, Bhutan, the Philippines, and South Korea.

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A police officer was charged with a disciplinary offense regarding “financial imprudence” resulting in the impairment of an officer’s operational efficiency. He was given the penalty of compulsory retirement. The disciplinary proceedings did not allow him an attorney at the hearing. The officer then challenged the fairness of such proceedings.

The Court of Final Appeal needed to determine whether Article 10 of the Bill of Rights (Article 14 of the ICCPR) was applicable. Article 10 required a fair hearing by an independent and impartial tribunal in the determination of any “criminal charge” or a person’s “rights and obligations in a suit at law”. In making its decisions, the CFA looked to the case law of the European Court of Human Rights regarding article 6(1) of the European Convention on Human Rights (similar to Article 10 of the Hong Kong Bill of Rights) and General Comment No. 32 of the Human Rights Committee, which concerned article 14(1) of the ICCPR.

The CFA noted that recent European case law (for example, the then-latest decision of the Strasbourg Court in Eskelinen v. Finland, (2007) 45 Eur. H.R. Rep. 43) followed the trend of extending protection of Article 6(1) of the European Convention to civil servants. However, another international source, the Human Rights Committee, in its General Comment No. 32, had expressed essentially a contrary view. Thus the CFA had to negotiate two conflicting sources of international law. The CFA chose to favor the interpretation of the Strasbourg Court, and thus adopted the Eskelinen approach and ruled in favor of the defendant. The defendant was thus entitled to Article 10’s constitutional protection regarding a fair hearing.

This case further demonstrates the great influence on Hong Kong jurisprudence of the European Convention on Human Rights.

(found in “International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 32-34, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )

A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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