Applicant’s alleged right to defend himself and have the benefit of a Counsel at the time of
his arrest; to free legal assistance during the judicial proceedings; be promptly given the
documents in the records to enable him defend himself; not to be convicted solely on the
basis of the inconsistent testimony of a single witness in the absence of any identification
parade, etc”. In sum, the Court admits that Mr. Abubakari did not have a fair
trial.
5. The Court ordered the Respondent State to "take all the necessary measures, within
reasonable time, to remedy the violations established." However, in paragraph 234 of
its judgment, the Court held that the release of the Applicant could be ordered...
only in special and compelling circumstances." The Court further finds that the
Applicant has not indicated such exceptional and compelling circumstances. |
do not share this opinion.
6. I wish to first emphasize
pronounced “only in special and
jurisprudence of international
an order for release was indeed
that I accept that the order for release can be
compelling circumstances”. This is an established
human rights courts. It happened, however, that
ordered’.
7. In the instant case, despite the fact that the Applicant did not invoke special
facts to justify exceptional circumstances, I reiterate my firm belief that the
Court has itself established
the said exceptional
and/or compelling
circumstances when it upheld all the irregularities that marred the various stages
of the case, from arrest to the stage of heavy sentence of 30 years imprisonment.
8. I do not see any "circumstance" more "exceptional and/or compelling" than
the one in which the Applicant found and still finds himself, having been
languishing in prison for 18 years out of the 30 years inflicted on him following
a trial that the Court declared unfair and at variance with certain provisions of
the Charter.
9. Unfortunately, by refusing to order the release of the Applicant, the Court did
not take its reasoning to its logical conclusion. Yet, it is the only "reparatory"
measure that the Court could have ordered, given the circumstances of the case.
Indeed, rather than leave to the Respondent the discretion to take appropriate
measures, the Court should have ordered the release of the Applicant.
4 Cf. ECHR, Grand Chamber, the case of Del Rio Prada v. Spain, Application No. 42750/09, Judgment of 21
October 2013. “3. Rules by sixteen votes against one, that it is incumbent on the respondent State to
ensure
the
release
of
the
applicant
as
soon
as
possible”.
Available:
http://hudoc.echr.coe.int/eng#{"fulltext":["Arret
Del
RioPrada"],"languageisocode":["FRE"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"i
temid":["001-127680"]}
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