continued incarceration may only lead to further violations to occur and not
releasing him would have devastating consequences that no amount of pecuniary
damages could remedy.
162. The Respondent State submits that the Applicant should serve his time for the crime
as he was duly sentenced by domestic courts. The Respondent State further
submits that the Applicant did not provide any specific or compelling circumstance
to substantiate his request to be released and that he is, as such, not entitled to the
relief sought especially because he committed the offence.
***
163. With respect to the prayer that the conviction be quashed and the sentence set
aside, the Court reiterates its position that it is not an appellate court as it does not
operate within the same judicial system as national courts; and does not apply the
same law." This Court cannot therefore entertain the Applicant's prayer.
164. Regarding the prayer for release, the Court refers to its established case law where
it held that a measure such as the release of the Applicant can only be ordered in
special or compelling circumstances. 48 The Court is of the view that such
circumstances are to be determined in casu bearing in mind mainly proportionality
between the measure of restoration sought and the extent of the violation
established. Determination must be done with the ultimate purpose of upholding
fairness and preventing double jeopardy.49 As such, the procedural violation that
underpins the request for a particular relief has to have fundamentally affected
domestic processes to warrant such a request.
See Application No. 027/2015. Judgment of 21/09/18, Minani Evarisl v. United Republic of Tanzania, § 81;
Mohamed Abuakari v. Tanzania, op. cit., §. 28.
48 See for instance, Alex Thomas v. Tanzania, op. cit., §. 157.
49 See Application No. 016/216. Judgment of 21109/18, Diocles Willian v. United Republic of Tanzania, § 101;
Minani Evarisl v Tanzania, op. cit., §. 82; Loaysa-Tamayo v. Peru, Merits, IACHR Series C No 33, [1997], §§.
83 and 84; Del Rio Prada v. Espagne, 42750/09 - Grand Chamber Judgment, [2013] ECHR 1004, §. 83;
Annette Pagnoulle (on behalf of Abdoulaye Mazou) v. Cameroun (2000) AHRLR 57 (ACHPR 1997) operative
provisions; and Communication No. 796/1998, Lloyd Reece v. Jamaica, Views under Article 5(4) of the
Optional Protocol, 21 July 2003, U.N. Doc. CCPR/C/781D1796/1998, §. 9.
47
39