Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement The “Street Children” case: Fairness from the point of view of the victims The so-called “Street Children” case against Guatemala concerned the abduction, torture and murder of four “street children”, the killing of a fifth, and the failure of State mechanisms to deal appropriately with these violations and provide the victims’ families with access to justice. Criminal proceedings were instituted but nobody was punished for the crimes committed. The Inter-American Court of Human Rights concluded that the relevant facts constituted a violation of article 1(1) of the American Convention on Human Rights “in relation to its article 8”, since the State had “failed to comply with the obligation to carry out an effective and adequate investigation of the corresponding facts”, i.e. the abduction, torture and murder of the victims.5 According to the Court, the domestic proceedings had “two types of serious defect”: first, “investigation of the crimes of abduction and torture was completely omitted”, and, second, “evidence that could have been very important for the due clarification of the homicides was not ordered, practised or evaluated”.6 It was thus “evident” that the domestic judges had “fragmented the probative material and then endeavoured to weaken the significance of each and every one of the elements that proved the responsibility of the defendants, item by item”, and that this contravened “the principles of evaluating evidence, according to which, the evidence must be evaluated as a whole, ... taking into account mutual relationships and the way in which some evidence supports or does not support other evidence”.7 In this case the Court also importantly emphasized that “it is evident from article 8 of the Convention that the victims of human rights violations or their next of kin should have substantial possibilities of being heard and acting in the respective proceedings, both in order to clarify the facts and punish those responsible, and to seek due reparation”.8 As can be seen, the due process guarantees thus also condition the very procedure whereby domestic authorities investigate and prosecute human rights violations. ***** The right to be heard in person: The right to a fair trial as guaranteed by article 6(1) of the European Convention on Human Rights was violated in the case of Botten, where the Supreme Court of Norway gave a new judgement, convicting and sentencing the applicant, in spite of not having summoned or heard him in person. This was so, although the proceedings before the Court had included a public hearing at which the applicant was represented by counsel. In the view of the European Court, the “Supreme Court was under a duty to take positive measures” to “summon the applicant and hear evidence from him directly before passing judgement”.9 5 I-A Court HR, Villagrán Morales et al. Case (The “Street Children” Case) v. Guatemala, judgment of November 19, 1999, Series C, No. 63, p. 198, para. 233. 6 Ibid., p. 196, para. 230; for more details see ibid., pp. 196-198, paras. 231-232. 7 Ibid., p. 198, para. 233. 8 Ibid., p. 195, para. 227. 9 Eur. Court HR, Case of Botten v. Norway, judgment of 19 February 1996, reports 1996-I, p. 145, para. 53. 256 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers