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The Human Rights of Due Process and Effective Remedy

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Human rights can empower people and strengthen democratic governance.

The right to due process is not just a civil right guaranteed by the US Constitution and the Bill of Rights, it is a human right delineated also in many international human rights documents [i] [ii] [iii] [iv] and upheld in international courts. [v] Principles of due process, or fair trial, are fundamental to the protection of human rights. [vi] One of the earliest and most well known provisions is to be found in the Fifth Amendment to the Constitution of the United States of America, adopted in 1791: "No person shall " be deprived of life, liberty, or property, without due process of law". As by two English human rights lawyers remarked, "the protection of procedural due process is not, in itself, sufficient to protect against human rights abuses but it is the foundation stone for "substantive protection' against state power."[vii] These procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary government action. [viii]

In 1948, due process rights were for the first time universally recognized. Article 10 of the Universal Declaration of Human Rights provides: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him". Article 11 of the Declaration elaborates on what is considered to be a fair trial in the case of criminal charges. In the perspective of common law, the article defines standards, on the one hand, for procedural due process and, on the other hand, for substantive due process. [ix] Such rights can only be protected and enforced if the citizen has recourse to courts, tribunals or other impartial institutions which enjoy a sufficient measure of independence from the governmental or administrative organs of a State, and which resolve disputes in accordance with fair procedures. According to Article 8 of the same Declaration, "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law". [x]

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But here in the USA many whistleblowers have not received their human right of due process. After 30 years, Leroy J. Pletten, as a whistleblower, has still has not seen due process. In August 1969, the Department of Army hired him at the Tank-Automotive Command (TACOM) in Michigan. Starting at GS-7 level and due to excellent performance, TACOM rapidly promoted him five grades, to the GS-12 level, June 1974. His positions were in Human Resources and as a Crime Prevention Officer. At the time that he blew the whistle on waste, fraud, abuse and corruption, he was age 33 with flawless performance/attendance record, and awards for same. Leroy J. Pletten had blown the whistle on hiring documents which were being falsified or disregarded to hire persons engaging in prohibited drug abuse conduct dangerous to themselves, others, and property. Safety Office officials would falsify records to show minimal problems. At least one coworker was injured and received worker compensation funds; another died. Another worker there was killed under such grossly unlawful circumstances that both federal and state criminal charges were filed, and upheld upheld all the way to the US Supreme Court. [xi] When he blew the whistle, his immediate supervisor, Jeremiah Kator, was supportive. Together they drew up a list of needed corrective actions. TACOM refused to do any of them. Mr. Kator was soon transferred to another base in another state. Coworkers who agreed to look the other way on the violations, were promoted to be in charge. When Leroy Pletten refused to be silent, the Chief of Staff at TACOM demanded he stop whistleblowing or lose his job. Leroy Pletten was then suddenly terminated from his position with no due process. Due process under both the Constitution and federal law 5 U.S.C. 7513 requires advance notice of charges, specificity, the right to defend and reply before decision is made, TACOM refused him this.

Leroy Pletten appealed in the Office of Special Counsel (OSC) and Equal Employment Opportunity Commission (EEOC) forums. OSC refuses to help. His EEOC investigation was stopped midstream by TACOM because co-workers were providing affidavits in his favor, to TACOM's consternation. TACOM has never allowed the EEOC forum investigation to resume. EEOC repeatedly ordered TACOM to let him have review. TACOM defied all such orders. The State of Michigan granted him unemployment over TACOM's protests insisting he wasn't eligible! Leroy Pletten subsequently sought review by the Merit Systems Protection Board (MSPB). He was subsequently informed that he had applied to retire himself (at age 34!) No advance notice of this accusation was given. His defense is clearly that no application to retire ever existed. But there was no day in court for Leroy Pletten, forcibly retired, he had lost his career and his livelihood.

All human beings are born free and equal in dignity and rights. Therefore, all human beings should have equal access to justice when their dignity or their rights are infringed upon. However, deficient or discriminatory justice systems can undermine this basic human rights principle. People need remedies to protect themselves from possible harm caused by others when involved in disputes or conflicts of interests. Remedies are measures that redress this harm, for instance through restitution or compensation. It is important that the justice systems serve to recognize people's entitlement to appropriate remedies, especially when people's inability to claim remedies through other means may put their well-being at risk. When an employer gives compensation to an employee in case of inappropriate dismissal, it may be an economic remedy and not a justice one.

Where civil rights or criminal charges, as defined by the Court's case-law, are involved everyone must have access to court, that is to an independent and impartial, a tribunal established by law whose decisions cannot be subordinated to any non-judicial authority. The right to a fair trial is important but the guarantees of rights often apply long before an individual has been formally charged with a criminal offense, or, in civil cases, may apply to the administrative stages that precede the initiation of judicial proceedings. The guarantees do not stop at the delivery of a judgment but apply also to the execution phase.

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In the determination of his civil rights and obligations or of any charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Everyone has the following minimum rights:

1) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusations against him;

2) to have adequate time and facilities for the preparation of his defense;

3) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

4) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

5) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The government is under a positive obligation to take all the steps necessary to ensure that these rights are guaranteed in practice as well as in theory. This includes putting sufficient financial resources at the disposal of their systems for the administration of justice. Judges are responsible to ensure that proceedings in their court rooms, whether investigative, at trial or at the stage of the execution of judgments comply with the all specified standards. But they are not the only public officials with such responsibilities. The police and prosecutors are under a duty to the victims of crimes (or surviving family members) to ensure that they conduct an effective prosecution of the case. Public defenders, and legal aid lawyers in civil cases, who are charged with protecting the civil and human rights of their clients, must carry out their professional responsibilities to a standard which makes the fair trial guarantees "practical and effective not theoretical and illusory". Persons should have the right to an effective remedy. Applicants should have had available to them a means of establishing that the acts or omissions of the public authorities were responsible for the violations suffered, and also a means of obtaining compensation for that damage. [xii] Disputes involving the relationship of the government and the individual such as removal of medical licenses, law licenses [xiii], the right to engage in commercial activity [xiv] [xv] [xvi] or loss of professional employment may also be covered by international human rights law. [xvii]

In 1999, the UN General Assembly adopted the "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms" [xviii] in which it further elaborated on the "right to benefit from an effective remedy".

Leroy J. Pletten is still waiting for due process, true access to justice and an effective remedy for having lost his career and his livelihood for 30 years.

See: http://medicolegal.tripod.com/inconsistencies.htm

http://www.uow.edu.au/arts/sts/bmartin/dissent/documents/Pletten.html

http://medicolegal.tripod.com/mckelveyj.htm



[i] Universal Declaration of Human Rights

[ii] The right to a fair trial, Article 6 of the European Convention on Human Rights

[iii] International Covenant on Civil and Political Rights (ICCPR)

[iv] International Covenant on Economic, Social and Cultural Rights (ICESCR).

[v] Delcourt v. Belgium, 17 January 1970, para. 25.

[vi] Richard Clayton & Hugh Tomlinson, The Law of Human Rights, Oxford: Oxford University Press, 2000, at p. 550

[vii] Richard Clayton & Hugh Tomlinson, The Law of Human Rights, Oxford: Oxford University Press, 2000,

[viii] See Laurence H. Tribe, American Constitutional Law, 2nd ed., Mineola, NY: Foundation Press, 1988, at p. 664. See also John V. Orth, Due Process of Law: A Brief History, Lawrence, Kansas:University Press of Kansas, 2003.

[ix] See Raimo Lahti, "Article 11', in Gudmundur Alfredsson & Asbjørn Eide (eds.), The Universal

Declaration of Human Rights, The Hague: Martinus Nijhoff, 1999, pp. 239-249, at 239.

[x] For commentaries on Arts. 8 and 10, see Erik Møse, "Article 8', and Lauri Lehtimaja & Matti

Pellonpää, "Article 10', ibidem, pp. 187-207 and 223-237, respectively. For an analysis of the travaux preparatoires of the Declaration's fair trial provisions, see David Weissbrodt, The Right to a Fair Trial under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, The Hague: Martinus Nijhoff, 2001, pp. 5-33.

[xi] International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987), and People v General Dynamics Land Systems Division, 175 Mich App 701; 438 NW2d 359 (1989) lv app den 435 Mich 860 (1990).

[xii] Z and others v. the United Kingdom, 10 May 2001, T.P. and K.M. v. the United

Kingdom, 10 May 2001.

[xiii] König v. the Federal Republic of Germany, 28 June 1978, and H v. Belgium,

30 November 1987.

[xiv] König v. the Federal Republic of Germany, 28 June 1978.

[xv] Jordebro Foundation v. Sweden, 6 March 1987, Commission Report, 51 DR 148.

[xvi] Tre Traktörer Aktiebolag v. Sweden, 7 July 1989.

[xvii] Foundation v. Sweden, 6 March 1987, Commission Report, 51 DR 148.

[xviii] Resolution 53/144 of 8 March 1999 (Article 9, paragraph 1, of the Declaration)


 

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