Dictum of the day, or on Children of a Lesser God

Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.

S.J. v. Belgium, app. no. 70055/10, 19 March 2015, Dissenting opinion of judge Pinto de Albuquerque, para. 12. 

Dictrum of the day, or on the nature of constitutions

Kad je riječ o zaštićenim ustavnim dobrima, Ustavu se ne može pristupati na način da se iz cjeline odnosa koji se njime ustrojavaju izvlači jedna odredba, pa se ona onda tumači zasebno i mehanički, neovisno o svim ostalim vrijednostima koje su Ustavom zaštićene. Ustav čini jedinstvenu cjelinu. On posjeduje unutarnje jedinstvo i značenje pojedinačnog dijela vezano je uz sve ostale odredbe. Promatra li ga se kao jedinstvo, Ustav odražava pojedina sveobuhvatna načela i temeljne odluke u vezi s kojima se moraju tumačiti sve njegove pojedinačne odredbe.

Judgment of the Constitutional Court of the Republic of Croatia, U-VIIR-4640/2014, 12 August 2014, para. 10.  

Dictum of the day, or on the value of fairness

While it is not for me to speculate about the reasons why my colleagues take such a different view on so many issues, I do want to offer some of my own reflections. Trials like these are difficult and complex matters, both from a legal and evidentiary point of view. Moreover, they are challenging on the human level. Sympathy for the victims’ plight and an urgent awareness that this Court is called upon to “end impunity” are powerful stimuli. Yet, the Court’s success or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just.

This raises the question by which standard fairness and justice should be evaluated. My view is that the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims and their Legal Representatives, while certainly relevant, cannot trump the rights of the accused. After all, when all is said and done, it is the accused – and only the accused – who stands trial and risks losing his freedom and property. In order for a court of law to have the legal and moral authority to pass legal and moral judgment on someone, especially when it relates to such serious allegations as international crimes, it is essential, in my view, to scrupulously observe the fairness of the proceedings and to apply the standard of proof consistently and rigorously. It is not good enough that most of the trial has been fair. All of it must be fair.

The Prosecutor v. Germain Catanga, International Criminal Court, No: ICC-01/04-01/07, dated 7 March 2014, Minority Opinion of Judge Christine Van den Wyngaert, para. 310-311.

Dictum of the day, or on the currency of rights

[T]he protection of a person’s fundamental human rights cannot be reduced to a question of currency. The right to self-determination, to respect for one’s bodily integrity and the right not to be ill treated are not commodities which can be ‘traded’. One should not have to pay to be left alone.

A.A. and Others v. Sweden, no. 14499/09, 28 June 2012, Dissenting Opinion of Judge Power-Forde

Dictum of the day, or on the perils of conscience

Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad.

Eweida and Others v. The United Kingdom (Application nos. 48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013, Joint Partly Dissenting Opinion of Judges Vučinić and De Gaetano, para. 3.

Dictum of the day, or Schomburg's fundamental dissent redux (?)

[I] fundamentally dissent from the entire Appeal Judgement, 
which contradicts any sense of justice.

Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Judgment, 16 November 2012, Dissenting opinion of Judge Fausto Pocar, p. 20

Dictum of the day, or on dream of healthy democracy

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs.  Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered... The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants. It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavors of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, “South Africa belongs to all who live in it”‘.

Democratic Alliance and Another v. Masondo NO and Another (CCT29/02) [2002] ZACC 28; 2003 (2) BCLR 128; 2003 (2) SA 413 (CC) (12 December 2002), J Sachs, para. 42-43.

Dictum of the Day, or Who Protects Ospreys?

An individual may be personally affected in his private interests by the environmental issues to which an application for planning permission may give rise. Noise and disturbance to the visual amenity of his property are some obvious examples. But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individual’s property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf.

Walton v. The Scottish Ministers, Supreme Court (of UK), 17 October 2012, Judgment of Lord Hope, para. 152.

Dictum of the day, or on vita brevis

The often prolonged delays in the operation of human justice seem to disclose an indifference to the brevity of human existence, to the time of human beings [...] It is high time to bridge the unfortunate décalage between the time of human justice and the time of human beings [...] [E]veryone lives within time, - the existential time of each one. The irreversible passing of time not only leaves its marks in the aging body, but also marks its flow in one’s conscience. Each person is ineluctably linked more to her own existential time (which cannot be changed) than to the space where she lives (which can be changed). Each person lives inevitably within her own time, conscious that it will come to an end. If one’s life-time is marked by injustice and impunity, one is left with the impression, after the occurrence of all the atrocities, that nothing seems to have happened at all. 

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ, 20 July 2012, Separate Opinion of Judge Cancado Trindade, para. 146, 149, 152.

Dictum of the day, or on the humans, consciense and the oblivion

One cannot build (and try to maintain) an international legal order over the suffering of human beings, over the silence of the innocent destined to oblivion (...) Above the will stands conscience, which is, after all, what moves the Law ahead, as its ultimate material source, removing manifest injustice.

Jurisdictional Immunities of the State (Germany v. Italy), International Court of Justice, GL No. 143, 6 July 2010, the Dissenting opinion of judge Antônio Augusto Cancado Trindade, para. 179

Trindade is safely metamorphosing into a full fledged l'enfant terrible of the international adjudication, combining academia and narcissism with genuine benevolence. A la new Weeramantry it would seem. Albeit mostly sound in reasoning such extrovert posture may lead to the characterization of human rights as a playground for eccentrics - though, sub sole nilhil novi est.