7.2.2 Amnesties, pardons, other measures of clemency or impediments
which preclude or indicate unwillingness to provide prompt and fair
prosecution and punishment of perpetrators, including full exemption from criminal or other responsibility due to favourable provisions of legislation on disclosure or repentance, frustrate the aims
of effective investigation and combating impunity and should be
avoided.
The guideline on restrictions of use of measures of clemency towards perpetrators of ill-treatment and other serious human rights violations is based
on the indications suggested in a number of UN documents and Strasbourg
Court judgments. The CAT has stated that amnesties and pardons “violate the
principle of non-derogability”.208 The Human Rights Commission advanced
the set of relevant standards by spelling out:
“The fact that a perpetrator discloses the violations that he, she or others have
committed in order to benefit from the favourable provisions of legislation
on disclosure or repentance cannot exempt him or her from criminal or other
responsibility. The disclosure may only provide grounds for a reduction of sentence in order to encourage revelation of the truth.”209
The Court has also taken a view that:
“… [W]here a State agent has been charged with crimes involving torture or
ill-treatment, it is of the utmost importance for the purposes of an “effective
remedy” that criminal proceedings and sentencing are not time-barred and that
the granting of an amnesty or pardon should not be permissible.”210
This view has been reaffirmed in a more recent judgment that concerned
the right to life. With a reference to the abovementioned assertion, the Court
made it clear that it:
...considers that when an agent of the State, in particular a law-enforcement officer,
is convicted of a crime that violates Article 2 of the Convention, the granting of
an amnesty or pardon can scarcely serve the purpose of an adequate punishment (see, mutatis mutandis, Okkalı, cited above, § 76, and Abdülsamet Yaman v.
Turkey, no. 32446/96, § 55, 2 November 2004). On the contrary, the Court expects
States to be all the more stringent when punishing their own law‑enforcement
208. General Comment N2, CAT/C/GC/2, para.5.
209. United Nations, Econ. & Soc. Council, Commission on Human Rights, Updated Set of
Principles for the Protection and Promotion of Human Rights through Action to Combat
Impunity, U.N. Doc. E/CN.4/2005/102/Add.1 (Feb. 8, 2005).
210. Abdülsamet Yaman v. Turkey, Judgment of 2 November 2004, application no. 32446/96,
para. 55.
Effective investigation of ill-treatment – Guidelines ► Page 70
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