Views of the Human Rights Committee of 27 July 2018 in the case of Andres Felipe Arias Leyva v. Colombia (communication No. 2537/2015).
In 2015, the author of the communication was assisted in the preparation of a complaint. Subsequently, the complaint was communicated to Colombia.
Subject of the message: the conviction of the former minister by the highest judicial body in one instance.
Substantive issues: the right to due process of law; the right to be heard by a competent, independent and impartial court; the right to the presumption of innocence; the right to review a conviction and punishment by a higher court; equality before the law; the right to participate in the conduct of public affairs and the right to be elected.
The Committee's legal position: The Committee recalls that, in accordance with article 14, paragraph 5, of the Covenant, everyone convicted of a crime has the right to have his conviction and sentence reviewed by a higher court in accordance with the law. The Committee recalls that the phrase "in accordance with the law" does not imply the discretionary powers of States parties with regard to the granting of the right of review in itself. Although the legislation of a State party may in certain cases provide that, in connection with his position, a person falls under the jurisdiction of a higher court than is usually practiced, this circumstance in itself cannot detract from the right of the accused to review his sentence and conviction by a higher court (paragraph 11.4 of the Views) (Terron v. Spain (CCPR/C/82/D/1073/2002), paragraph 7.4. See also general comment No. 32, paragraphs 45-47.).
The Committee recalls that article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, to vote and be elected and to be admitted to public service. The exercise of these rights by citizens may be suspended or revoked only for objective and reasonable reasons established by law. The Committee.... Recalls that if the basis for the deprivation of the right to vote is a conviction for a crime, then the period for which this right is suspended must be proportionate to the gravity of the crime and the sentence imposed (Dissanayake v. Sri Lanka (CCPR/C/93/D/1373/2005), paragraph 8.5.).... The Committee recalls that in cases where such a conviction is manifestly arbitrary, the result of an obvious error or amounts to a denial of justice, or if the trial violates the right to due process, this may give this restriction of the rights enshrined in article 25 an arbitrary character (paragraph 11.6 of the Views) (Nasheed v. Maldives (CCPR/C/122/D/2270/2013 and 2851/2016), paragraph 8.6.).
The Committee considers that the fight against corruption, the protection of public funds and, consequently, public interests in order to preserve the democratic order is a legitimate goal of the States parties. Thus, the State party may have a logical interest in restricting access to public functions for persons convicted of corruption crimes. To this end, the State party may impose lifelong restrictions on the rights provided for in article 25 of the Covenant only in exceptional cases, in connection with serious crimes and when justified by the individual circumstances of the convicted person. Any such restriction must be based on objective grounds and predictable (paragraph 11.7 of the Considerations) (Paksas v. Lithuania (CCPR/C/110/D/2155/2012), paragraph 8.4.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that the conduct of criminal proceedings against him constitutes a violation of article 14, paragraph 5, of the Covenant, since there is no mechanism to appeal the verdict and apply for a review of the conviction and punishment imposed by the Criminal Division of the Supreme Court on 17 July 2014... Taking into account that the Constitutional Court declared unconstitutional certain articles of the Code of Criminal Procedure that do not provide for the possibility of appealing any conviction to a higher authority in terms of status or function, and that the Constitution was amended, the author submitted two petitions to the Supreme Court to appeal the verdict, which were found to be unfounded, respectively, on May 25, 2016 and on March 7, 2018 (paragraph 11.2 of the Considerations).
The State party has not identified any other available remedy that the author could have used to request a review of his sentence and sentence by another court. Accordingly, the Committee concludes that the State party has violated the author's rights under article 14, paragraph 5, of the Covenant (paragraph 11.4 of the Views). The Committee also notes that the consequences of declaring a number of articles of the Code of Criminal Procedure unconstitutional on 24 April 2015 in accordance with the decision of the Constitutional Court do not apply to the author's case and that in a decision of 28 April 2016, the Supreme Court ruled that the decision of the Constitutional Court applies to sentences that were not executed before 24 April 2016. In addition, after the amendment of the Constitution in accordance with Legislative Act No. 01 of 2018, the author filed a complaint with the Supreme Court, which was declared inadmissible on March 7, 2018 (paragraphs 8.4 and 8.5).
The Committee takes note of the author's claims that the verdict of the Supreme Court of July 17, 2014 is violation of his rights under article 25 of the Covenant, because.... deprives him for life of the opportunity to be elected to public office or to hold it (paragraph 11.5 of the Considerations).
The Committee notes that on 17 July 2014, the Supreme Court found the author guilty of committing crimes of embezzlement by embezzlement and entering into contracts without complying with legal requirements. Since the author was convicted of crimes related to State property, the Court also deprived him of the opportunity to hold public office. The State party's observations do not refute the permanent nature of this restriction. On the contrary, it confirmed that this measure was taken by the Court within the framework of a fair criminal process and that it is lawful, objective, reasonable and proportionate... In addition, the Committee notes that the Supreme Court also decided to deprive the author of public rights for the period of the main sentence (17 years and 5 months) and that the author did not challenge this decision. In this context, the Committee must determine whether the author's life imprisonment under article 25, after serving his basic sentence, is consistent with the Covenant.... In the present case, the Committee notes that the author was convicted of serious crimes committed by him in the performance of his functions as Minister of Agriculture, the highest official of the Ministry, and that these crimes had serious consequences for State property. Having established the criminal liability of the author, the Supreme Court automatically imposed a lifetime restriction on his rights under article 25 of the Covenant, in accordance with article 122 of the Constitution, as amended by Legislative Act No. 01 of 2004, which was in force at the time of the events described.... The duration of this restriction significantly exceeds the duration of the author's main punishment. The Committee notes that the provisions on the restriction of rights in article 122 of the Constitution are formulated in general terms and do not set any time limits, and that, in addition, the conditions for the introduction of this restriction are also formulated in general terms, thereby limiting its predictability. Furthermore, in the light of the information provided to the Committee by the parties, the Committee notes that the Supreme Court did not give a full individual assessment of the proportionality of the restriction of the author's rights under article 25 of the Covenant. In the operative part of the sentence, according to which the author's rights were restricted, the Court did not directly consider the specific circumstances of the serious crimes for which the author was convicted. The Court also did not substantiate how these circumstances could serve as a basis for lifelong restriction of rights. In the light of the above, the Committee considers that the available information does not allow it to conclude that, in this case, the lifetime restriction of the author's rights under article 25 of the Covenant, established by the Supreme Court, is proportionate. In this regard, the Committee concludes that the State party has violated the author's rights under article 25 of the Covenant (paragraph 11.7 of the Views).
The Committee... Concludes that the facts before it reveal a violation of articles 14, paragraph 5, and 25 of the Covenant (paragraph 12 of the Views).