A cultural page · the chambers of Dilbadi Gasimov
Famous speeches for the defence and for the prosecution, from Rome to Boston, Pretoria to Buenos Aires, Nuremberg to Strasbourg. Each story opens an archive, a judgment or a speech — not an encyclopaedia.
People walk into a hearing for a case. They sometimes walk out with a sentence that no longer belongs only to that day's accused. A plea is that gap: a lawyer speaks for one person, and the room hears a rule. Adams in Boston, Gandhi in Ahmedabad, Mandela in Pretoria, Strassera in Buenos Aires, Badinter in Paris: the names change. The gesture does not. Someone stands, accepts the frame or argues with it, and asks that judgment not run ahead of the facts.
This page is not a lecture, and it is not a consultation. It is the memory of the profession, told from Strasbourg, a short walk from a court where fundamental rights now have a European address.
13 stops
Rome, Paris, Boston, Nuremberg, Pretoria, Buenos Aires, the Torres Strait. The timeline keeps thresholds, not a history of France alone.
80 av. J.-C.
In Rome, the advocatus is the one who is called to one’s side. Cicero will make of that place an art, with its parts, its silences and its ethics: not to plead just anything, but not to leave an accused person without a voice either.
87 stories
Each story is a summary, not a court file. The links at the foot of the reading open an archive, a judgment, a speech or an institution — not an encyclopaedia. Cases already told on Lecture are not repeated here.
87 stories
38 countries
Dakar, Nairobi, Gaborone, Port Louis, Lisbon, Mexico City, Lima, Belmopan, Oslo, Madrid, Kampala, Windhoek, Brasília, Bogotá, Kingston, London, Dublin, Rome, The Hague, Jerusalem, Delhi, Seoul, Manila, Tokyo, Arusha, Wellington, Lautoka. The + opens the whole story. Close returns to the list. A country appears only if a judgment or an archive can be opened.
34 stories
South Africa · 1995
Two accused, T. Makwanyane and M. Mchunu, were sentenced to death for murder by the Witwatersrand Local Division. Their appeal comes before the Constitutional Court, which has only just begun to sit. The question is no longer whether they killed. It is whether the State may still kill.
On 6 June 1995, under the presidency of Arthur Chaskalson, the Court holds that the death penalty contradicts the interim Constitution: the right to life, dignity, the prohibition of cruel, inhuman or degrading punishment. The infringement is not justified. The provision of the criminal procedure code that provided for death is declared invalid. Sentences already passed cannot remain.
This is not Mandela’s speech from the dock. It is the judgment that takes death out of South African criminal law, at the moment when the country gives itself a court able to say no to yesterday’s legislature.
The two men had been convicted on several counts of murder, and also of attempt and of aggravated theft. The appeal is no longer about the proof. It is about the heaviest penalty the code still knew. When the Court declares it invalid, it does not pardon one file. It takes the tool away from every file still to come.
Senegal · Chad · 2016
Hissène Habré ruled Chad. It is not in N'Djamena that he answers for the acts of which he is accused, but in Dakar, before the Extraordinary African Chambers created within the Senegalese courts.
On 30 May 2016, the assize chamber gives judgment. The summary read in court finds crimes against humanity: homicide, a massive practice of summary executions, abduction followed by disappearance, torture, inhuman acts. For other characterisations, the chamber sets aside what is not established well enough.
The story is in that move: an African court tries a former president for crimes committed in another State. What is spoken in the courtroom is no longer only the defence lawyer’s word. It is also that of a chamber which says, aloud, what it finds and what it does not find.
The summary read in court is already a word spoken in the courtroom: the chamber says what it finds, and it also says what it does not have the means to find. In the same reading one hears both the conviction and the limit of the proof. That is what it means to try a former head of state outside the country of the facts: a room, a text, and characterisations that pass only if the file carries them.
Kenya · 2017
On 8 August 2017, Kenya votes. The electoral commission declares a president elected. Raila Odinga and another petitioner go to the Supreme Court: the poll, they say, did not respect the Constitution or the electoral law.
On 1 September, the majority — Chief Justice David Maraga, Vice-President Philomena Mwilu, Smokin Wanjala and Isaac Lenaola — annuls the election. The irregularities, notably in the transmission of the results, affected the integrity of the vote. The Court does not find any fault on the part of the candidate declared elected. Jackton Ojwang and Njoki Ndung'u dissent.
The hearing does not last long. The sentence remains: a court can say that a presidential election did not take place according to the Constitution, and that the result proclaimed is void. The detail of the reasons comes afterwards. The order itself is immediate.
The Constitution and the electoral law are not, for the majority, a backdrop. If the transmission of the results was irregular enough to reach the integrity of the poll, the figure proclaimed cannot remain. The two dissenters do not see the same breach. The Court’s order is the majority’s: the election of 8 August does not stand.
Uganda · 2009
Susan Kigula and other condemned prisoners ask the Constitutional Court whether the death penalty, as Ugandan law provides for it, holds before the Constitution. The appeal reaches the Supreme Court.
On 21 January 2009, the Court does not say that every capital penalty is cruel. It says something else, and that is already a great deal: the texts that impose death as a mandatory penalty are contrary to the Constitution. The judge must be able to choose the sentence. It also says that a delay of more than three years after confirmation of the sentence, before mercy is decided, is inhuman.
Hanging, as the mode of execution provided for by the Constitution, is held to be lawful. The judgment therefore does not close the chapter. It takes from the legislature the right to write death in advance upon every conviction, without looking at the person before the court.
The distinction is the whole story. Death may still be pronounced. It may no longer be pronounced because a text decided it in advance, without the judge looking at the man. And if, once the sentence is confirmed, more than three years pass before mercy is examined, that delay itself is held to be inhuman. The penalty changes its nature when it is left hanging too long.
Namibia · 1991
In November 1990, the Attorney General of Namibia puts a dry question to the Supreme Court, still very new: is corporal punishment inflicted by an organ of the State compatible with the chapter on fundamental rights, and above all with article 8?
Article 8 prohibits torture and cruel, inhuman or degrading punishment or treatment. There is no derogation from it. On 5 April 1991, Ismail Mahomed answers, and Chief Justice Hans Berker says that he follows him. Corporal punishment ordered by the State — including by a judge, including upon a minor — is contrary to that prohibition.
The Court does not weigh here an excuse of public interest. When the treatment is inhuman or degrading, the Constitution does not ask whether it would be useful. It forbids it.
The question put in November 1990 was not limited to adults, nor only to sentences of a court. It concerned corporal punishment inflicted by an organ of the State, including upon a minor. The answer of April 1991 is therefore broad. Article 8 is not negotiated: if it is infringed, no public interest comes to redeem it.
Canada · 1988
Dr Henry Morgentaler, Leslie Frank Smoling and Robert Scott had been acquitted. The Court of Appeal for Ontario reversed those acquittals. The appeal raises a constitutional question: does the provision of the Criminal Code that regulates abortion infringe the Charter?
On 28 January 1988, the majority of the Supreme Court answers yes. The infringement is to the security of the person, guaranteed by section 7, and it is not in accordance with the principles of fundamental justice. The acquittals are restored. William McIntyre and Gérard La Forest dissent: for them, outside the cases already provided for by the Code, a right to abortion cannot be deduced from Canadian tradition.
The reasons do not all say the same thing. Dickson speaks of the body and of the constraint the law lays upon it. Wilson goes further, towards conscience. The result is one: the criminal provision does not hold.
The hearing before the Supreme Court lasted several days, in October 1986. The judgment comes on 28 January 1988. Seven judges, and reasons that do not overlap. What the majority has in common is the result: the acquittals return, and the provision of the Criminal Code can no longer be used. The dissent remains in the judgment. It does not change the order.
Brazil · 2012
Criminal action 470 is aimed at a system: monthly payments to members of parliament from several parties, in exchange for votes in favour of the government’s bills in the Chamber. The Supremo Tribunal Federal holds itself competent, notably because of the forum of certain accused, and keeps the whole of the case.
The investigation describes advertising contracts that do not match the services, public money diverted, then hidden. On 17 December 2012, the full court, whose rapporteur is Justice Joaquim Barbosa, convicts several of the accused. The characterisations retained vary: criminal association, active and passive corruption, peculation, money laundering.
What is cited is not an isolated plea. It is a hearing at which the highest court in the country judges elected officials and intermediaries on the way the votes of Congress were bought. The Court’s official summary tells the scheme, the evidence and the result.
The full court does not split the case between those who have a privileged forum and the others. It tries them together, because the investigation, it says, gains by that, without offending the natural judge. The sentences are not the same for everyone. They follow each person’s share: who paid, who received, who hid. The Court’s summary is the official account of that hearing.
Colombia · 2004
In Colombia, the tutela is the remedy by which a person asks the judge to protect a fundamental right, at once. People displaced by the conflict turn to it. They are not asking for a theory. They are asking to be received by the State.
On 27 August 2004, the Constitutional Court, in Sentencia T-813/04, recalls what it had already said the same year in Sentencia T-025: forced displacement puts people in a situation of defencelessness. Article 13 of the Constitution commands priority treatment. T-025 characterised the whole as an unconstitutional state of affairs.
The Court does not merely record the fact. It names the institutions that must act, from the national level to the territories. The story is that of a judge who, seised of particular cases, speaks for an entire population and orders that the right not remain on paper.
The tutela is not a trial of several years. It is made so that a fundamental right does not remain a dead letter for the length of an ordinary procedure. When the Court, seised of cases, recalls the unconstitutional state of affairs of T-025, it speaks at once to the people before it and to the institutions that must receive them as a priority. The judge is then writing for a population, not for a single file.
Honduras · Costa Rica · 1988
Manfredo Velásquez Rodríguez is a student at the National Autonomous University of Honduras. The application says that he was arrested without a warrant, violently, by agents of the National Directorate of Investigations. He is never seen again.
The Inter-American Commission takes the case to the Court, which sits in San José, in Costa Rica. On 29 July 1988, the Court holds that Honduras violated the right to life, the right to integrity and the right to liberty. It does not stop at the finding. The State had to search. A disappearance of which no account is given is not a closed case.
The judgment becomes the regional model: the international courtroom says that a State answers not only for what its agents did, but for the investigation it did not carry out. The victim’s missing voice is replaced by the obligation to look for her.
The application describes an arrest without a warrant. Then, silence. On 29 July 1988, the Court does not merely name the rights infringed: life, integrity, liberty. It says that the State had to search. A disappearance for which no one answers is not a case that dies away. The regional model comes from that: to answer is also to investigate.
Jamaica · 1993
Earl Pratt and Ivan Morgan had been sentenced to death in Jamaica. The appeals, the delays, the steps pile up. They remain on death row. On 2 November 1993, their appeal is before the Judicial Committee of the Privy Council, in London, then the court of last resort for Jamaica.
The Jamaican Constitution prohibits inhuman or degrading punishment. The Board holds that an excessive delay between sentence and execution can, by itself, make the execution contrary to that prohibition. One cannot leave a man for years under threat of death, and then say that the punishment provided at the start is still the same punishment.
The judgment does not discuss only yesterday’s guilt. It discusses what time does to a sentence. For Pratt and Morgan, death can no longer be carried out under these conditions.
Pratt and Morgan are not before the Privy Council so that their trial may be read again from the first day. They are there because the sentence, once pronounced, has waited. The Jamaican Constitution prohibits inhuman punishment. The Board says that the waiting itself can become that. The death provided by the text at the start is no longer the same punishment when it has been left to weigh for years.
United Kingdom · Spain · Chile · 1999
In September 1973, a military junta overthrows Allende’s government in Chile. Augusto Pinochet leads it, then becomes head of State, until 1990. In 1998 he is in London for medical treatment. Spain asks for his extradition for crimes it imputes to him, committed above all in Chile, while he was in power.
None of the facts alleged was committed in the United Kingdom, or against British people. The question the House of Lords must decide is therefore not: did he do this? It is: can a former head of state raise his immunity to shut the door of the court, when what he is accused of is torture?
On 24 March 1999, in the judgment known as Pinochet No. 3, Lord Browne-Wilkinson sets out the case for the House. The majority refuses to let immunity cover the tortures alleged after the convention against torture had become part of British law. Chile, Spain and London find themselves in the same room, for one procedural sentence that decides whether the trial can even begin.
Pinochet is not tried in London on the merits of the Chilean facts. He is there because Spain asks that he be handed over, and because he raises the immunity of a former head of state. On 24 March 1999, the majority of the House of Lords says that this immunity does not cover the tortures alleged after the convention entered British law. The door of the trial is not yet the trial. But it is no longer shut on that ground.
Ireland · 1973
Mary McGee is twenty-seven. She lives at Loughshinny, in County Dublin, with her husband, a fisherman, and their four children. The last two are twins. Her doctor advises her against another pregnancy. The Act of 1935 prohibits the import of the means she is trying to obtain.
She sues the Attorney General and the customs service. The President of the High Court dismisses her claim. On 19 December 1973, the Supreme Court allows her appeal. The provision of the Criminal Law Amendment Act that closes this import infringes a right the Constitution does not write out in full: the private life of the couple.
The judgment is signed in particular by Brian Walsh. It does not speak of a slogan. It speaks of one particular woman, one particular family, and a law that comes into their house. The Irish courtroom then says that the Constitution also protects what it did not take the trouble to name.
Mary McGee is not attacking an idea. She is attacking a prohibition on import, that of the Act of 1935, which concerns her, her husband and their four children. The High Court dismisses her claim. The Supreme Court, on 19 December 1973, allows the appeal. The right it protects is not written out in full. It is still real enough for a law to stop coming into that house.
Germany · 1963–1965
Fritz Bauer, Prosecutor General of Hesse, spent years getting investigations opened into Nazi crimes. The great trial he obtains is that of Mulka and others, before the regional court of Frankfurt: the Auschwitz trial, reference 4 Ks 2/63.
From 1963 to 1965, the courtroom hears 318 witnesses, 181 of them survivors. The tapes are kept by order of the Minister of Justice of Hesse, Lauritz Lauritzen. In 1989 the court entrusts them to the archives of the Land. The Fritz Bauer Institute, together with the Auschwitz-Birkenau memorial, the archives of Hesse and the archives of German radio, has published the transcript.
In them one hears the testimony, the last word of the twenty accused, the prosecution’s address, the speeches for the defence. Bauer wanted German society to hear itself. The courtroom, here, is not a quotation. It is a recorded voice, which can still be opened.
The tapes are not a press summary. They keep the voices: 318 witnesses, 181 of them survivors, the last word of twenty accused, the prosecution’s address, the speeches for the defence. Lauritz Lauritzen ordered that they be kept. The court then entrusted them to the archives of Hesse. To open the Auschwitz trial, today, is still to hear the courtroom, not merely to quote it.
Italy · 1975
A law of 1912 said that an Italian woman lost her citizenship in cases where her will did not come into account. The question reaches the Constitutional Court through a judge in Milan, by way of an incidental question: does the rule still hold before the Constitution?
On 9 April 1975, the Court, presided over by Francesco Paolo Bonifacio, declares illegitimate article 10, third paragraph, of the law of 13 June 1912, in the part that provides for this loss independently of the woman’s will. The judgment is filed on 16 April and published in the Official Journal.
This is not a great trial at assizes. It is a sentence of civil law which, for sixty years, decided whether a woman remained of her country when she married. The Court withdraws it. Citizenship is no longer the price of a marriage.
Since 1912, one sentence had decided that a woman could lose her country without having willed it. The judge in Milan does not decide that sentence alone. He refers it to the Court. On 9 April 1975, under the presidency of Bonifacio, article 10 falls in the part that ignores the woman’s will. Sixty years of civil law stop on a page of the Official Journal.
Israel · 1961
Adolf Eichmann is in the dock, in Jerusalem. He pleads not guilty. Attorney General Gideon Hausner rises to open. The report of the Jewish Telegraphic Agency, published on the day of the hearing, fixes his first words.
He says that he is not alone. Six million prosecutors stand with him, who can no longer rise, point to the accused and say: I accuse. Their ashes are at Auschwitz, at Treblinka, or in pits across Europe. Their blood cries out. Their voices are no longer heard. It is in their name that he reads the indictment.
Hausner adds that Eichmann has not renounced. If it were called for, the opening address says, he would begin again. The official transcripts will later be published by the Israeli Ministry of Justice. The opening sentence was first a piece of news, that very evening.
Hausner does not begin with an exhibit. He begins with those who are not in the room. Six million, he says, can no longer rise and point to the dock. The report of the day fixes the sentence. Later, the Ministry of Justice will publish the transcripts. The opening was first spoken aloud, before a man who was pleading not guilty.
India · 1973
Kesavananda Bharati is the superior of a monastery in Kerala. Agrarian laws of the State restrict the management of the mutt’s property. He goes to the Supreme Court. His advocate is Nani Palkhivala. Behind a religious estate, the question has become this: how far may Parliament rewrite the Constitution?
Thirteen judges sit. It is the largest bench the Court has assembled. On 24 April 1973 they give judgment. The majority says that article 368 allows any provision to be amended, including fundamental rights. It adds a limit: Parliament may not destroy the basic structure.
The monastery’s petition has therefore served as a door. Once open, it does not shut again. Since then, every Indian amendment may be looked at by that measure: not only what it changes, but what it has no right to abolish.
The petition begins with a monastery in Kerala and with laws that restrict its property. Palkhivala carries it as far as a bench of thirteen judges. On 24 April 1973 the majority does not say that Parliament is powerless. It says that Parliament may amend, even fundamental rights, and that it may not destroy the structure that bears them. The limit is not in an article. It is in what the judgment refuses to let disappear.
Cambodia · 2010–2012
Kaing Guek Eav, known as Duch, ran S-21, the centre in Phnom Penh where the Communist Party of Kampuchea locked people up, interrogated them and had executed those it held to be enemies. The Extraordinary Chambers in the Courts of Cambodia try him in 2009.
On 26 July 2010 the trial chamber finds him guilty of crimes against humanity and of grave breaches of the Geneva Conventions. It sentences him to thirty-five years, from which it deducts five years for the unlawful detention he underwent before the military court between 1999 and 2007. The defence had asked for an acquittal. The prosecution, forty years.
On 3 February 2012 the chamber of the Supreme Court upholds the conviction, refuses the reduction, and pronounces life imprisonment. The court’s file says that at least 12,273 people were detained at S-21, and that at least 11,742 of them were executed there. The figure is the court’s, not a commentator’s estimate.
In 2010 the court of first instance finds crimes against humanity and grave breaches of the Geneva Conventions. Thirty-five years, minus five, for the unlawful detention before the military court. In 2012 the supreme chamber upholds the conviction, refuses that reduction, and pronounces life imprisonment. The figures in the file — at least 12,273 detained, at least 11,742 executed — are the court’s.
South Korea · 2017
On 9 December 2016 the National Assembly votes to impeach President Park Geun-hye. 234 votes in favour. The file passes to the Constitutional Court. In the street, the processions for and against removal grow at the same time. The Court had already known a presidential impeachment: in 2004 it had rejected the one brought against Roh Moo-hyun.
On 10 March 2017, at 11:21, the eight judges, unanimously, uphold the application and remove Park Geun-hye from office. The decision is broadcast live. The President does not finish her term. The election that follows is held on 9 May.
The Court itself publishes the account of the two cases, side by side: the one it refused, the one it allowed. One sees there what a constitutional courtroom does when the whole country is listening: it says whether the violation charged against the president is or is not enough to take the office away.
In 2004 the same Court had said no to the removal of Roh Moo-hyun. In 2017 it says yes for Park Geun-hye. Eight judges, a single voice, on 10 March at 11:21, live. 234 deputies had voted the impeachment on 9 December. The President does not finish the term. The election of 9 May comes afterwards, because the office has been taken away.
Philippines · 1993
Juan Antonio, Anna Rosario and Jose Alfonso Oposa, and other children, represented by their parents, sue the Secretary of the Environment. Their lawyer is from the Oposa firm. They invoke the right of Filipinos to an ecological balance, and they tie it to an idea the judgment names: responsibility between the generations.
The case comes from a civil chamber in Makati, which had turned them away. On 30 July 1993 the Supreme Court, sitting en banc, decides the appeal. Justice Davide writes that the petition bears, in a broad sense, on that right to a balanced and healthy environment, which the petitioners connect to the justice owed to those who are not yet born.
The Court accepts that these minors may go to the judge on that basis. The courtroom does not hear only the party who already has a quantified harm. It also hears those who speak for a right the Constitution has written, and for people who cannot yet sue.
The petitioners are minors. Their parents represent them. The chamber at Makati had turned them away. On 30 July 1993 the full Supreme Court hears them. Davide writes that their petition bears on the right to a balanced and healthy environment, and on what they call the justice owed to generations who are not yet here. The Court accepts that they may speak for a right, and not only for a harm already counted.
Japan · 1948
The International Military Tribunal for the Far East sits in Tokyo. The accused are Japanese leaders, among them Hideki Tojo. The powers that constitute it are the United States, China, the United Kingdom, the Soviet Union, Australia, Canada, France, the Netherlands, New Zealand, India and the Philippines. William Webb presides.
Judgment is given from 4 November 1948. It recounts the creation of the tribunal, the law it says it applies, then the military domination of Japan, the war in China, the war in the Pacific. The text, bound in several volumes, is preserved and published. The chapters can be read, not only the summary.
As at Nuremberg, the room brings together judges who do not come from the country on trial, accused who led a State, and a very long speech. Japan enters the atlas by that trial: not a national court, but a courtroom set up in its capital to say what the war was.
Eleven countries constitute the tribunal. Webb presides. Among the accused is Tojo. The judgment begins on 4 November 1948 and runs across volumes: how the court was created, what law it says it applies, then the war in China and in the Pacific. This is not a Japanese court judging its own. It is a courtroom set up in Tokyo to say, at great length, what that war was.
Rwanda · Tanzania · 1998
Jean-Paul Akayesu was bourgmestre of Taba, in Rwanda, in 1994. The International Criminal Tribunal for Rwanda, created by the Security Council, tries him at Arusha, in Tanzania. The chamber is presided over by Laïty Kama, with Lennart Aspegren and Navanethem Pillay. The prosecutor is Pierre-Richard Prosper. For the defence, Nicolas Tiangaye and Patrice Monthé.
On 2 September 1998 the chamber finds him guilty, in particular of genocide and of direct and public incitement to commit it. It is the first conviction pronounced by an international court for this crime. The judgment also says that rape and sexual violence, when their aim is to destroy a group, can be acts of genocide.
The courtroom is far from Taba. The words, though, return to what happened there: who was in command, who knew, what the violence done to women was meant to destroy. The judgment is 294 pages. It does not come down to a formula. The formula, all the same, changed the law.
Akayesu was the bourgmestre of Taba. He is tried at Arusha, not on the hill. On 2 September 1998 the chamber — Kama, Aspegren, Pillay — finds him guilty of genocide and of public incitement to commit it. It is the first time an international court has pronounced this crime. The judgment adds that rape, when its aim is to destroy a group, can be an act of it. Two hundred and ninety-four pages carry that sentence.
New Zealand · 1987
In 1986 a statute allows assets of the State to be transferred to public enterprises. It also says, in section 9, that the Crown must act in accordance with the principles of the Treaty of Waitangi. The New Zealand Māori Council goes to the court: without a safeguard, lands claimed before the Waitangi Tribunal will pass, and the claims with them.
On 29 June 1987 the Court of Appeal finds for the Council. To transfer without having put in place a system for examining, property by property, whether the transfer offends the principles of the treaty would be unlawful. The Court invites the Crown and the Council to build those safeguards together.
President Cooke says it: the principles of the treaty oblige the partners to act towards one another reasonably, and with the utmost good faith. A sentence from the nineteenth century, often treated as a memory, becomes a rule the administration must apply before it signs.
Section 9 of the Act of 1986 is not a formula in a preamble. It binds the Crown. On 29 June 1987 the Court of Appeal says that lands cannot be transferred to state enterprises without there first being a means of examining, property by property, whether the transfer offends the principles of the Treaty of Waitangi. The Crown and the Māori Council must build that means together. To sign before that would be to sign outside the law.
Papua New Guinea · 1956
Mago, son of Gaude, had been convicted. He appeals to the Supreme Court of the Territory of Papua New Guinea, which gives judgment on 27 March 1956. Justice Gore, acting as Chief Justice, does not need to go back over everything.
At the trial the accused had chosen to speak from the dock, without an oath. The regulations on native affairs allow it. In that case he does not go into the witness box. He is not cross-examined. Neither the complainant nor the magistrate had the right to put questions to him on that statement. They did so.
The Court quashes the conviction. An unsworn statement is not testimony. To confuse it with testimony is to take from the accused the choice the procedure gives him: to speak without taking the oath, and not to be treated as a witness. The appeal is allowed. The conviction falls.
Mago had chosen the dock, not the witness box. Without an oath, he spoke. The regulations gave him that right, and they forbade that he be questioned. The complainant and the magistrate put questions all the same. On 27 March 1956 Gore says that this is enough to bring the conviction down. A statement is not turned into testimony because one feels like arguing with it.
Samoa · 1982
In 1982 the Court of Appeal of Samoa is seised of matai suffrage. It is asked to read the Constitution as if it had abolished that mode of election in favour of universal suffrage. The constitutional convention, for its part, had debated precisely that abolition, and had refused it.
On 26 August 1982 the Court holds unanimously that sections 16 and 19 of the electoral law were validly made. It sets aside the declaration of the Supreme Court which had held them contrary to the Constitution. The cases are sent back, as to the rest.
The Attorney General had indicated that he would pay the costs, given the public importance of the question. The Court draws the order from that. The story is that of a judge who refuses to rewrite, by interpretation, the choice the drafters explicitly set aside.
The convention had had the question before it: to replace matai suffrage with universal suffrage. It said no. On 26 August 1982 the Court of Appeal refuses to say yes in its place. Sections 16 and 19 remain valid. The contrary declaration of the Supreme Court is set aside. To interpret, here, is not to finish a text the drafters refused to write.
Fiji · 2000–2001
On 19 May 2000 the Parliament of Fiji is invaded. There is a taking of hostages, then a military intervention, then an interim administration which claims to have abrogated the Constitution of 1997. Chandrika Prasad, a farmer, goes to the High Court at Lautoka. He is represented by George Williams and Anu Patel. Justice Gates gives judgment on 15 November 2000.
Gates says that the coup has failed, that the revocation of the Constitution of 1997 is of no effect, and that that Constitution remains the supreme law. Parliament has not been dissolved. The State appeals.
On 1 March 2001 the Court of Appeal upholds the substance: the interim government has not proved that the population had truly acquiesced. The Constitution of 1997 remained in force. A man without means obtained that a court say, in writing, that a coup d’état does not abolish the fundamental law merely because it has proclaimed that it does.
On 19 May 2000 Parliament is invaded. Hostages are taken. The army intervenes. An administration says that the Constitution of 1997 no longer exists. Prasad, a farmer, asks a judge at Lautoka whether that is true. Gates, on 15 November, says that it is not. On 1 March 2001 the Court of Appeal confirms: the country’s acquiescence is not proved. To proclaim the abrogation is not to accomplish it.
Botswana · 2003
Wasim Ahmed is awaiting trial for abduction and related counts. Five co-accused are with him. His lawyers ask for the witnesses’ statements and the documents in the police file. In August 2002 the Deputy Attorney General replies that the State will hand over nothing.
The High Court declares that this refusal violates the right to a fair trial, guaranteed by section 10 of the Constitution, and that he is entitled to those documents. The Attorney General appeals.
On 31 January 2003 the Court of Appeal, in the voice of Lord Sutherland, upholds the first judge. Section 10 must not be narrowed by a restriction the text does not write. To prepare a defence is to see what the prosecution has in its file. Without that, the hearing is a theatre of which only one side knows the play.
Ahmed has not yet been tried. He is preparing his defence, with five co-accused, on facts of abduction. His lawyers want the statements and the file. In August 2002 they are told no. The High Court says that section 10 is infringed. On 31 January 2003 Lord Sutherland upholds it: one does not add to that section a restriction it does not contain. A defence that does not see the file is not a defence.
Mauritius · 2006
A criminal case drags on. The appellant maintains that the delay, by itself, has violated the Constitution of Mauritius, which promises a trial within a reasonable time. On 16 October 2006 the Judicial Committee of the Privy Council answers.
If the case is not heard and decided within a reasonable time, section 10 is already violated, whether or not the accused has suffered concrete prejudice. A remedy must exist. But the hearing is not annulled, and the conviction is not quashed, for delay alone, unless the trial was unfair, or it was unfair to try the case at all.
In this case the Board finds the violation. It wipes out the prison sentence and substitutes a fine of 10,000 rupees. Time does not wipe out everything. It obliges the court to say that it has been too slow, and to draw a consequence.
On 16 October 2006 the Privy Council does not say that every delay annuls the trial. It says first that the delay, by itself, already violates section 10, even without prejudice shown. Then it looks for the remedy. Here, the prison sentence is replaced by a fine of 10,000 rupees. The conviction does not disappear altogether. The time that was too long is named, and it costs the sentence.
Mexico · 2009
On 25 August 1974 Rosendo Radilla Pacheco disappears in the State of Guerrero. The application attributes the abduction to soldiers. Years later, it is still not known where he is. His remains have not been found.
The Inter-American Commission takes the case to the Court, after a petition filed in 2001 by a Mexican commission for the defence of human rights and by an association of families. On 23 November 2009 the Court gives judgment: preliminary objections, merits, reparations and costs.
The courtroom is not in Iguala, nor in Chilpancingo. It is in San José. It says that a disappearance does not die away because the years pass, and that the State must still answer for the man who was not returned, and for the investigation that did not succeed.
Radilla Pacheco disappears on 25 August 1974, in Guerrero. The application speaks of soldiers. In 2001 a Mexican commission and an association of families go to the Inter-American Commission. On 23 November 2009 the Court rules on the merits, the reparations and the costs. Between those dates, the man has not been found. The judgment exists because the absence lasted.
Peru · 2009
The court that tries Alberto Fujimori is presided over by César San Martín. On 7 April 2009 it reads the sentence. The sentence is 711 pages: the antecedents, fifteen chapters of fact, five chapters of law, then the operative part.
At the hearing, what is read first are the questions of fact held to be proved, then the chapter on Fujimori’s responsibility, then the verdict. The penalty is twenty-five years in prison, for murder, serious injury and aggravated kidnapping. The accused and the public prosecutor appeal the same day.
The institutional memory of the Judiciary recounts that reading, not a commentary. A former president is in the courtroom of his own country. The sentence that counts is the one the court pronounces, page after page, before the figure of the penalty.
Seven hundred and eleven pages are not read as a formula. On 7 April 2009 San Martín’s court reads out the structure, the facts held to be proved, the chapter on responsibility, then the figure: twenty-five years, for murder, serious injury and aggravated kidnapping. Fujimori and the public prosecutor appeal before leaving the room. The memory of the Judiciary keeps that reading, not a portrait.
Spain · 1985
An organic bill seeks to add to the criminal code an article 417 bis: an abortion carried out by a doctor, with the woman’s consent, would not be punishable in certain cases. The challenge comes before the full Constitutional Court, presided over by Manuel García-Pelayo.
On 11 April 1985 the Court says that the bill is not in conformity with the Constitution. Not because of the cases themselves in which abortion would cease to be an offence, but because the way the law regulates them does not meet the requirements article 15 imposes. The judgment is to be published in the Official Bulletin.
The English translation is the Court’s own. One sees there a courtroom that does not settle for saying yes or no to a principle. It says whether the text, as it is written, protects enough of what the Constitution asks it to protect.
García-Pelayo presides over the full court. The bill would have had a doctor, with the woman’s consent, able in certain cases to carry out an abortion without its being an offence. On 11 April 1985 the Court does not reject those cases in themselves. It says that the manner of writing them is not enough for article 15. The text must protect enough. As it stands, it does not. The judgment goes to the Official Bulletin.
Norway · 2010
A man is prosecuted for having, in 1992, during the war in Bosnia, deprived Serb civilians who were not fighting of their liberty. The criminal code of 2005, which entered into force on 7 March 2008, has new offences: crime against humanity, war crime. Can they be applied to him?
Article 97 of the Norwegian Constitution prohibits retroactive law. The judges below had said: not time-barred; the new war crime may apply; the crime against humanity, no. Both parties appeal. On 3 December 2010 the Supreme Court sits in plenary.
It holds first that there is no time-bar: the charge of May 2007, under the old code, interrupted the period, and the man had had sufficient warning. Then the majority, eleven judges, says that the new articles of 2005 cannot be applied to these facts. The name of the crime is not changed after the event.
The facts are from 1992, in Bosnia: Serb civilians deprived of their liberty. The code that names the crime against humanity and the war crime does not enter into force until 2008. Article 97 prohibits punishment backwards. On 3 December 2010 eleven judges say that these new articles do not apply. The charge of May 2007 did interrupt the limitation period under the old law. It does not authorise a change in the name of the crime.
Portugal · 2010
The law of 17 April 2007 says that the interruption of pregnancy, at the woman’s choice, within the first ten weeks, is not punishable. It must be carried out by a doctor, or under a doctor’s direction, in an official or recognised health establishment. A mandatory consultation informs the woman. At least three days separate that consultation from the act.
Two applications ask the Constitutional Court to hold that this law is unconstitutional. On 23 February 2010, in plenary session, the rapporteur is Joaquim Sousa Ribeiro. The majority refuses to declare it unconstitutional.
The Court recalls that intra-uterine life falls within the protection of article 24, but as an objective constitutional value. The State has a duty to protect. The Constitution does not dictate the means. At the beginning of pregnancy, that minimum duty does not require a closed list of grounds. Criminal punishment, the most wounding, is legitimate only if it is necessary. Here, the Court says that it is not.
The law of 17 April 2007 lays down conditions: a doctor, a recognised establishment, a consultation that informs, at least three days before the act, and the woman’s choice within the first ten weeks. On 23 February 2010 the majority of the Court refuses to see an unconstitutionality there. Protecting intra-uterine life is a duty. That duty, at the beginning of pregnancy, does not impose a closed list of grounds, nor necessarily prison.
Belize · 2002
On 16 April 1997 Patrick Reyes kills, by firearm, Wayne Garbutt and his wife Evelyn. He is tried for two murders. The law of Belize imposes death for every murder by firearm. He is sentenced to death on each count. The Court of Appeal dismisses the appeal on guilt. The Privy Council likewise refuses to reopen the conviction. It does accept, however, two constitutional grounds that had not been argued below.
On 11 March 2002 the Board holds that this automatic penalty is inhuman or degrading treatment, contrary to section 7 of the Constitution. It compels the court to pronounce death. It forbids the judge to ask whether it is humane to condemn this particular man to die. The category “every murder by firearm” is undifferentiated.
Section 102 of the code, to that extent, is void. Automatic death can no longer be the sentence written in advance. The judge must be able to hear what, in the fact and in the man, ought to rule out the ultimate penalty.
Reyes is sentenced to death twice, because the law of Belize leaves no choice when the murder was committed by firearm. The guilt remains. On 11 March 2002 the Privy Council does not go back over it. It goes back over the penalty. Section 7 prohibits inhuman treatment. A death written in advance, without the judge being able to look at the man, is contrary to it. That part of the code is void.
United Kingdom · Germany · United States · 1989
Jens Soering is German. He is detained in England. The United States ask for his extradition to answer for a murder in Virginia, where death is a possible penalty. The case comes to Strasbourg. Germany, of which he is a national, is also before the Court. Judgment is given on 7 July 1989, in plenary, under the presidency of Rolv Ryssdal.
Article 3 of the Convention prohibits torture and inhuman or degrading punishment or treatment. The Court says that extradition may violate that article if serious grounds show a real risk that the person would undergo such treatment in the State which claims him. Here the risk is not only death. It is what the judgment calls the “death row phenomenon”: everything that awaits the person who is sentenced to death and then left for years on the row.
The Court holds that this risk is real enough for article 3 to apply, and that to hand Soering over under these conditions would violate that article. The courtroom is not Virginia’s. It is the one that decides whether the door of the aircraft may open.
Soering was born on 1 August 1966. He is German, detained in England, and sought by Virginia for a murder. On 7 July 1989, at Strasbourg, the plenary Court says that to hand a man over may violate article 3 if the risk of inhuman treatment, there, is real. Here the risk it finds is death row: not only the penalty, but the waiting under that penalty. The aircraft cannot leave under these conditions.
Five movements
Ancient rhetoric is still taught, not as a mould, as a way of breathing. Walk through the five movements. The sample sentences are from school: they were never spoken in a real case.
Exorde
The first sentences do not summarise the file. They say why this room should listen to the person who is speaking, and from what place: grave, simple, without flattering the jury.
“I am not asking you for friendship toward my client. I am asking for the time to set the facts down in the order in which they really happened.”
A school example, not a quotation.
1 of 5 movements.
The body
In the first century Quintilian described how an orator stands: the feet, the hand, the eyes, the step. This is not the code of a bar today. Beside it, the French rules still speak of moderation, and of the visit one pays before pleading outside one's own order.
Quintilian, in Book XI, asks that the body be upright, in its natural poise. Lowered, it looks like abjection. Thrown back, like arrogance. Leaning, like indolence. Stiff and motionless, like a certain ferocity. The neck stays straight, neither stiff nor thrown back. The shoulders are settled. The feet keep to the same line, a little apart, or else the left foot a little forward. The knees are in poise, without strain.
To spread the legs too far, when one is standing, is for him an indecent posture. This is not the regulation of a bar today. It is the Roman lesson: to hold oneself is neither to efface oneself nor to arch one’s back.
The dress
Touch a point on the drawing, or choose the word below. The sketch enlarges the shoulder piece so it can be seen: in court, the sign is thinner.
Two rectangles of white linen, at the neck. It is what remains of the collars and the cravats of earlier times, simplified down to a sign. It can be seen from far off: even before the face, one knows who is about to speak for the defence, or to sit.
The wig does not belong to this dress. France left it on the other side of the Channel. Here, solemnity sits in the black, the white linen, and the fact that everyone in court wears the same restraint.
Three formulas
The gesture has stayed. The words have changed masters: the Gospel, then the king and the State, then a conscience without a guardian.
Aujourd'hui
« I swear, as an advocate, to exercise my functions with dignity, conscience, independence, probity and humanity. »
The present formula has left the king and the Gospels. It keeps what is essential: one does not exercise this speech without binding oneself.
In a low voice
Hearings where the court was stranger than the speech. Three shelves separate the Court of Cassation, the Council of State and the administrative courts. Each story opens the judgment. Those already told on the firm's Lecture page are not repeated here.
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It is said of Yves de Kermartin that he was the first advocate admitted to paradise — and presidents of the Bar often add, smiling, that they would like him not to be the last. The point is an old one. It speaks of popular mistrust, and of the profession's answer: to deserve the exception.
A reading
Six lines, drawn from the stories already here. This is not a consultation, and it is not one rule: each country keeps its own text. What is compared are published holdings, not advice.
The owner is not the only name the judges write. At Onon, the dog belongs to both spouses: the court puts the 25,000 roubles on the wife alone, because one of the co-owners is enough. In Japan, in 1982, the man who lent the kennel and helped every day is also liable, though he was not the owner: he had left too easy a padlock, and he had gone away.
Elsewhere, the victim’s fault does not always split the bill. In China, a malamute forbidden in the built-up area scratches a seven-year-old child who had teased it. The court still pays the reasonable expenses, 30,197.65 yuan. In Australia, in 1932, a hand laid on a fence is enough: the owner knew that the German shepherd attacked people. In Aargau, in 1955, the same dog had already bitten a small child: the 7,000 francs stay whole, and the bitch the mother was leading with her reduces nothing. These judgments are not copied from one country to the next. They say only who, that day, was held liable.
Legends
Sentences people repeat about lawyers, the gown, secrecy, the hearing, police custody. Each one opens, is decided, then meets a text. This is not advice on a case, and it is not a legend left unanswered.
10 questions
Not an exam. A way to see what stayed after the reading.
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The lexicon