Advisory Opinion

Requested by The Armenian Court of Cassation Request No. P16-2021-001 European Court of Human Rights R Spano P, & J; JF Kjolbro, S O’Leary, Y Grozev, G Ravarani, M Bošnjak, E Kūris, B Lubarda, A Harutyunyan, A Poláčková, P Koskelo, J Schukking M Elósegui, LS Orland, M Guyomar, L Ktistakis and A Zund, JJ; S Prebensen, DGCR April 26, 2022 Reported by Faith Wanjiku and Betty Nkirote Download the Decision

International Law-law of treaty-European Convention on Human Rights-prohibition of torture-where the court found substantial and procedural violation of article 3 of the European Convention of Human Rights-where the applicant had been subjected to torture while in police custody-where the authorities had failed to conduct an effective investigation into the applicant’s allegations of ill treatment-European Convention of Human Rights, 1953, article 3.

International Law-law of treaty-European Convention of Human Rights-criminal procedure-whether non-application of statutes of limitation for criminal responsibility for torture or any other crimes equated thereto by invoking the international law sources was compliant with article 7 of the European Convention, if the domestic law provided for no requirement for non-application of statutes of limitation for criminal responsibility-European Convention of Human Rights, 1953, article 7; Constitution of Armenia 2015, article 5(3); Criminal Code 2003, article 75 1(vi)

Brief facts

The Armenian Court of Cassation made a request for an advisory opinion in respect to criminal proceedings against two police officers implicated in the ill treatment of the applicant in the case of Virabyan v Armenia in April 2004. In October 2012, the trial court found that there were procedural and substantive violations of article 3 of the European Convention on Human Rights (Convention). The trial court found that the applicant had been subjected to torture and that the authorities had failed to carry out an effective investigation into his allegations of ill treatment.

On May 10, 2016 the investigator instituted a new criminal case against the two police officers implicated in the applicant’s ill treatment under article 309 (2) of the Criminal Code (the CC)which provided for a penalty for exceeding authority by a public official accompanied by the use of violence. The trial court found that the defendants had committed an offence under that provision but held that they were exempted from criminal responsibility by virtue of the ten year limitation period in article 75 1(3) of the CC which had expired in April 2014. The decision of the trial court was on appeal upheld by the Court of Appeal.

The prosecutor then lodged an appeal on points of law to the Court of Cassation. The court was to determine whether the proceedings were to be considered under the ten year limitation period or whether the proceedings were covered by the exception in article 75 (6) of the CC, whereby no limitation period could apply to certain types of offences, offences against peace and humanity or those envisaged in international treaties to which Armenia was a party and which prohibited the application of limitation period.

Issue:

  1. Whether non-application of statutes of limitation by domestic law for criminal responsibility for torture or any other crimes equated thereto by invoking the international law sources would be compliant with article 7 of the European Convention.

Relevant provisions of the law

European Convention on Human Rights, 1953

Article 3-Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 7-No punishment without law

1.No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminaloffence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2.This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

The Constitution of the Republic of Armenia, as Amended in 2015

Article 5-The hierarchy of legal norms

 In case there are contradictions between the norms of international treaties ratified by the Republic of Armenia and the norms of laws, the norms of the international treaties shall be applied.

Article 72-The principle of legality in defining crimes and imposing penalties

No one shall be convicted for an action or inaction that was not a crime at the time of its commission. A penalty that is more severe than the one applicable at the time of committing the crime may not be imposed. A law that eliminates punishment for an act or mitigates the penalty shall apply retrospectively.

Article 73-The retrospective effect of laws and other legal acts

  1. Laws and other legal acts that cause a person’s legal situation to deteriorate shall not have retrospective effect.
  2. Laws and other legal acts improving a person’s legal situation shall have retrospective effect if such acts so prescribe.
Criminal Code, 2003 Article 12-Operation of the criminal law in time
  1. The criminality and punishability of the act is determined by the acting criminal law at the time of committal of the offence.
Article 75-Exemption from criminal liability as a result of expiry of the statute of limitation
  1. The person is exempted from criminal liability, if the following periods of time have elapsed after the committal of the crime:

3) 10 years, since the day of committal of grave crime.

4) 15 years, since the day of committal of particularly grave crime.

6. The expiry of the prescription period is not applicable to persons who committed crimes against peace and human security envisaged in Articles 384, 386-391, 393-397 of this Code.

Prescription periods are not applied to the persons who committed crimes envisaged in the RA international agreements, provided the agreement prohibits the application of the prescription period.

Code of Criminal Procedure, 1999

Article 35-circumstances excluding criminal prosecution

  1. Criminal case cannot be instituted and criminal prosecution may not be started and the instituted criminal case is subject to suspension, if:
6) the prescription has expired. Held
  1. The prohibition of torture had achieved the status of jus cogens or a peremptory norm in international law. In cases that concerned torture or ill treatment inflicted by state agents, criminal proceedings were not to be discontinued on account of limitation period. Amnesties or pardon were not to be tolerated and the manner in which the limitation period was applied had to be compatible with the requirements of the Convention.
  2. The court had on several occasions held that limitation might be defined as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence had been committed. Limitation periods served several purposes which included ensuring legal certainty and finality and preventing infringements of the rights of defendants, which could be impaired if courts were required to decide on the basis of evidence which could have become incomplete due to passage of time.
  3. The court’s rulings on article 7 of the Convention had not found legislative changes extending a limitation period which had not yet expired to constitute a failure to comply with that provision. It could be deduced from the court’s jurisprudence that where criminal responsibility had been revived after the expiry of a limitation period, it would be deemed incompatible with the overarching principles of legality nullum crimen, nulla poena sine lege and foreseeability enshrined in           article 7 of the convention.
  4. In cases where a criminal offence under domestic law was subject to a statute of limitation and became time barred so as to exclude criminal responsibility, article 7 of the convention would preclude the revival of prosecution in respect of such an offence on account of absence of a valid legal basis. Holding otherwise would be tantamount to accepting the retrospective application of the criminal law to an accused disadvantage.
  5. Where a criminal offence was subject to a statute of limitation pursuant to domestic law and the applicable limitation period had already expired, article 7 of the Convention precluded the revival of a prosecution in respect of such an offence.
  6. The national court was to first and foremost determine, within the context of its domestic constitutional and criminal law rules, whether rules of international law which had legal force in the national legal system, in the present instant pursuant to article 5 (3) of the constitution could provide for a sufficiently clear and foreseeable legal basis within the meaning of article 7 of the Convention to conclude that the criminal offence in question was not subject to a statute of limitation.
Concurring opinion of Harutyunyan, J
  1. The state’s obligation to ensure a prompt and impartial investigation did not depend on a submission of a formal complaint. It was sufficient that torture had been alleged by the victim or that other reasonable grounds existed to believe that torture or ill treatment might have occurred, whatever the origin of the suspicion.
  2. In general, the state’s obligations to prevent, investigate, and punish grave violations of human rights and of international humanitarian law ought not be understood as simple obligations of conduct, but rather as obligations of result as those were peremptory norms of international law safeguarding fundamental human rights. In the domain of jus cogens such as absolute prohibition of torture, the state’s obligations entailed both acting diligently and achieving a result, otherwise, there would occur a situation of legitimized impunity.
  3. The absolute prohibition of grave violations of human rights, such as torture entailed obligations which could only be of result, endowed with a necessarily objective character. In the international human rights law framework it was not the result that was conditioned by the conduct of the state, but quite the contrary, it was the conduct of the state that was conditioned by the attainment of the result aimed at by the norms for the protection of the human being. The conduct of the state ought to be that which was conducive to compliance with the obligations of result. It ought not to be forgotten that the absolute prohibition of torture resulted from increased awareness of the horror and the inhumanity of the practice of torture.
  4. Interpretations should have been in compliance with Armenia’s international obligations pursuant to which acts that amounted to torture were not subject to any statute of limitations. Victims of torture who had no access to justice were victims of continuing violation until that violation ceased. The passing of time for such a grave violation of inherent right could not lead to subsequent impunity. Impunity was an additional violation of human rights. The imperative of the preservation of the integrity of human dignity stood well above the pleas of non-retroactivity.
  5. Unlike most Convention articles, article 3 did not fit a two stage model of human rights adjudication in which the court first established whether the right had been interfered with and then determined whether such interference could be justified as necessary in a democratic society to achieve a legitimate aim. Instead, its application only required a certain threshold to be met: ill treatment and a minimum level of severity. Where treatment fell under the scope of article 3, it was absolutely prohibited and under no circumstances could it be justified.
  6. The jus cogens prohibition of torture overrode national provisions on limitation. As a consequence of the negative effect of the jus cogens nature of the prohibition, any law that provided for a limitation period was therefore ab initio contrary to international norms and could never be legally applied. There was therefore no question of the applicability of article 7 of the Convention as there was never a valid law that provided for limitation, the non-applicability of the limitation periods was legal ab initio and foreseeable as it had been part of the national legislation pursuant to the jus cogens prohibition of torture and time limits in relation thereto. Even if the prosecution had already become time barred under national law that was irrelevant as such a law could never have legal effect.

Relevance to Kenyan jurisprudence

Article 50(2)(n) of the Constitution of Kenya, 2010, provides as follows:

Every accused person has the right to a fair trial, which includes the right—

(n)not to be convicted for an act or omission that at the time it was committed or omitted was not— (i)an offence in Kenya; or

(ii)a crime under international law.”

The above provision sets out the cardinal principle of legality. This principle requires the rules by which a person is to be bound to be identifiable by him through reference to identifiable sources that are publicly accessible. In criminal matters it is important to have certainty and clarity. Therefore, it is clear that under the principle of legality, two principles emerge: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly ascertainably punishable when the act was done.

In Aids Law Project v Attorney General & 3 others [2015] eKLR the court stated as follows:

Legality is a fundamental rule of criminal law that nothing is a crime unless it is clearly forbidden in law. This principle is a core value, human right, but also a fundamental defense in criminal prosecution in a way that no crime can exist without a legal ground.

It follows that the principle of legality is an integral part of the rule of law. This was appreciated by the court in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA No. 743 of 2006 [2007] 2 KLR, where it was held thus:

One of the ingredients of the rule of law is certainty of law. Surely the most focused deprivations of individual interest in life, liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. This is a vision and a value recognized by our Constitution and it is an important pillar of the rule of law.

On the other hand, article 25 of the Constitution of Kenya 2010, provides for freedom from torture in the following terms:

25-Fundamental Rights and freedoms that may not be limited

Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment

Thus, it is clear that the constitution protects everyone’s right from torture and inhuman and degrading treatment. Also, this right is one of the non derogable rights under the constitution. In Davis Mokaya Ondimu v Attorney General & 3 others [2021] eKLR the court held in this regard as follows:

In that respect, Article 25 is clear that the freedom from torture and cruel, inhuman or degrading treatment or punishment is a non derogable right. In other words, this is an absolute and inalienable right that cannot be limited. A claim by anyone that he has been tortured or treated in a dehumanizing manner by those responsible for protecting his life and property, is a grave and serious indictment that a court that is obligated to enforce and protect rights and fundamental freedoms should not take lightly.

Given that freedom from torture is one of the fundamental rights protected under the Bill of rights, a person who alleges violation of this right is required to file a constitutional petition under article 22 of the Constitution for appropriate relief. In Kenya, the general rule is that there is no limitation period for filing constitutional petitions.

However, in considering whether or not to grant appropriate relief, the court is entitled to consider whether there has been unreasonable delay in lodging the petition and the reasons for the delay.

In Musa Mbwagwa Mwanasi & 9 others v Chief of the Kenya Defence Forces & another [2021] eKLR, the court observed as follows:

I agree indeed in constitutional related matters, the general rule is that there is no limitation of time set for filing constitutional petitions. However that notwithstanding , for purposes of fair trial as provided under Article 50 of the Constitution, it is expected that one should not advertently delay commencement of a suit such that the other party is compromised in putting forth a plausible defence. Further in my view any delay must be explained fully for purposes of establishing whether it can be excused by the Court and it is the burden of the delaying party, in this case, the Petitioners to put forth a plausible explanation as to why the delay should be considered inadvertent.

In the case of Kiluwa Limited & Another v Commission of Lands & 3 Others [2015] eKLR, the court expressed itself as follows: There is no statutory period prescribed for commencement of the petitions either under Article 22 or 258 of the constitution. The grant of these reliefs or remedies is consequently not subject to any statute or period of limitation either under the Limitation of Actions Act (Cap 22 laws of Kenya) or the Law Reform Act… I therefore reject argument by Counsel for the 3rd and 4th respondents subjecting the reliefs in judicial review granted in a constitutional petition to any period of limitation.” Further, in James Kanyiita Nderitu v Attorney General & another [2019]eKLR the court observed thus: Although there is no limitation period for filling proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under Section 84 of the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State, in any of its manifestations, should be vexed by an otherwise stale claim.’

Consequently, whereas there is no time limit for filing petitions alleging violations of constitutional rights, as a matter of fairness, a petitioner is required to explain any inordinate delay in instituting constitutional proceedings. This is to ensure that the delay does not prejudice the respondent.

This advisory opinion is therefore relevant to the Kenyan jurisprudence as it enlarges the jurisprudence on non-application of the statute of limitation to enforcement of the freedom from torture which is an absolute right.