Thus, if a prisoner alleged tortured or even had old evidence that he was tortured during trial, it would
not be considered ‘newly discovered’ circumstances and would not qualify as a ground for review. In
practice, ‘newly discovered’ means that the facts were unknown during the trial even if they disclose
that torture was used to extract a confession used as evidence.
III. Efforts to establish an additional mechanism
In light of these obstacles to get sentences reviewed, national human rights activists and legal experts
tried to introduce an extraordinary mechanism. In 2015, together with MPs, they put forward the draft
law 2033a that proposed the creation of a mechanism allowing for the review of old cases, if the verdict
was grounded on:
A self-incrimination statement, which a person later denied claiming that it was extracted by
torture, or if such a statement was obtained through another violation of rights (e.g. without
presence of a lawyer);
Testimonies obtained from a person who initially was a witness and then became a suspect;
Distorted circumstances that do not correspond to the facts;
Circumstances based on evidence that was obtained through violation of the defendants’
rights at any stage.
I list the above grounds because they demonstrate the range of issues that are still impossible to use
as procedural grounds to initiate a review of the “old” life sentences.
The draft law was adopted in the first reading. But later it got stalled with little chance for ultimate
adoption. There are a few possible reasons for that: a) a part of the professional community considered
that it would violate a principle of legal certainty by creating an extraordinary mechanism in addition
to the existing ones (i.e. ‘extraordinary circumstances’); b) political reluctance to acknowledge
mistakes of the past in such sensitive cases disturbing society; c) lobbying by some representatives of
the judiciary and law enforcement who might have to face negative legal consequences if some lifers
were acquitted as a result of the law, e.g. forging criminal cases.
Conclusions
Mechanisms to dispel doubts about justifications of life sentences, even if doubts are about the use of
torture, might be difficult to establish. The efforts may face barriers of the traditional legal system,
which is not built to deal with consequences of a different legal reality in the past. In addition, penal
populism as well as lobbying by the alleged perpetrators of torture may create additional obstacles.
In your countries, is there an extraordinary mechanism allowing for the review of life sentences in case
of doubts similar to those described above?
Many long-term prisoners claim they are innocent. Not all of them are. Should it be considered an
unjustified legal favour to give life prisoners an additional, extraordinary chance to prove their
innocence?
48
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