Postvonnis-regte en verwagtinge van slagoffers en oortreders in geweldsmisdade met verwysing na die rolprent The secret in their eyes

Abstract

Suid-Afrikaanse slagoffers van gewelddadige misdade soos verkragting en moord kan tans verwag dat lewenslange gevangenisstraf as die swaarste moontlike vonnis aan hul oortreders opgelê word. Na vonnisoplegging is die werklike termyn van aanhouding wat uitgedien moet word, nie net vir die oortreder van belang nie, maar ook vir die slagoffer. Die Argentynse rolprent The secret in their eyes gee ’n treffende illustrasie van die verraad wat ’n agterblywende wewenaar ervaar wanneer die staat versuim om sy verpligting na te kom om sy vrou se moordenaar regmatig te straf. In sy strewe na geregtigheid word hy self ’n lewenslange slagoffer. Die rolprent bring die regte van slagoffers en oortreders tydens die postvonnis-fase op die voorgrond. Hierdie fase word ondersoek met spesifieke verwysing na slagoffers se redelike verwagtinge van die staat, bemagtiging deur middel van hul regte (byvoorbeeld die reg om inligting relevant tot paroolbesluite te verskaf), en die ondersteuningstrukture tot hul beskikking om die effek van geweldsmisdaad aan te spreek. Daarbenewens word die regte van oortreders wat lewenslange vonnisse uitdien, beoordeel, soos die reg op waardigheid en menslike interaksie, asook die reëls met betrekking tot die vonnistermyn en paroolvergunning. Die rolprent bekragtig die motivering onderliggend aan ’n kultuur van regte vir beide slagoffers en oortreders. Daarby word die wesenlike spanning tussen die regte van beide partye en die dwingende vereiste om ’n balans tussen die twee te vind, geïllustreer. Die artikel wys uit dat wanneer regsteks in formele onderrig deur die gebruik van rolprentmateriaal gekontekstualiseer word, die opleiding en begrip van regstudente aangevul en verskerp kan word.

In this article the storyline and facts in the Argentinean film The secret in their eyes are used to highlight and evaluate certain aspects of the criminal justice system. The focus is on those aspects which are, after conviction of a violent crime, of import to both victim and offender, namely the sentence imposed and the actual term of incarceration to be served. The current position under South African law is investigated in the event where a murderer, unlike the one in the film, had been sentenced to life imprisonment under a democratic dispensation. The post-sentence phase is examined, with reference to victims’ legitimate expectations from the state, their empowerment through rights (such as the rights to receive and provide information concerning parole proceedings), and available support structures to address the effects of violent crime. In addition, the rights of offenders serving life sentences, such as the right to dignity and human interaction, as well as the rules pertaining to sentence duration and parole, are evaluated. Lastly, it is highlighted how the use of film, such as The secret in their eyes, may enrich legal education by supplementing legal text with the fictionalised application of (or disregard for) laws and rules in humanised settings. The secret in their eyes depicts a young husband (Morales) who loses his beloved wife (Liliana Colotto de Morales) through the commission of a brutal rape and murder. Although the matter is initially handled as a cold case, the police investigation resumes on the insistence of the federal agents involved (Esposito and his assistant, Sandoval). They identify a suspect named Gomez, who was driven by jealousy to rape and murder Liliana. Through perseverance and grit they succeed in arresting Gomez, who finally confesses and is sentenced to life imprisonment. The backdrop to the movie is the political corruption in Argentina during the mid-1970’s when the fascist regime could interfere in the legal process and disregard individual freedom and transparency. Clandestine operations, corruption and power play between role players in the criminal justice system give rise to the unexpected early release of Gomez and his appointment in a security capacity to the presidency of Argentina. Esposito and his assistant are astonished and powerless, but nothing is revealed at this point about Morales’s reaction and feelings. A retired Esposito revisits the case after 25 years to complete his first novel. In the process of seeking a more fitting ending he seeks out Morales where he is leading a quiet, rural life. What he finds is the twist in the tale. In the closing scenes of the film Esposito leaves Morales’s home puzzled and decides to return stealthily. He watches Morales taking food to an outbuilding where he then finds an aged, incarcerated and worn Gomez. The film makes it evident that by removing the values of dignity, hope and human interaction and by pursuing revenge, Morales not only deprived his prisoner of his humanity, but he himself became a victim for life. The visual images and words are haunting, especially when Gomez begs Esposito to ask Morales to at least talk to him, to which Morales lifelessly responds: “You said it would be life.” These images poignantly portray a prisoner and his “warden” who are both left without any hope for the future. In watching the dilemma of Morales and Gomez the viewer cannot help but feel equal empathy for both of them. The events in The secret in their eyes provide particular insight into the human experience of both Morales and Gomez. Morales believed he has been betrayed by the criminal justice system and expected Gomez to “pay back” for the murder of his young wife by suffering himself. It is evident that he felt that justice could be achieved only by inflicting appropriate harm in terms of degree and length (thereby taking life imprisonment literally). By taking the life of his wife, Gomez owed him his life. The actions of Morales, following the unjustified early release of Gomez, raise a number of issues relating to the expectations and misconceptions of victims pertaining to the sentence of “their” perpetrators. In addition to Morales’s position the film highlights the contrast between the lawful implementation of life imprisonment (as executed by the state) versus the situation where a victim, obsessed with vengeance, takes the law into his or her own hands. This scenario raises awareness of human rights imperatives underlying lawful incarceration (had the sentence of life imprisonment run its full term). In its duty to protect citizens’ individual rights in the criminal justice system the state should put adequate sanctions in place. Life imprisonment is currently prescribed as the sentence for crimes such as murder and multiple rape, yet a lesser sentence may be imposed when substantial and compelling circumstances exist (section 51(3) of the Criminal Law Amendment Act 105 of 1997). Crime victims thus know only on the day of the sentencing judgment whether the prescribed sentence will be deviated from and what the sentence is that is deemed by the court to be proportionate to the crime committed against them. When life imprisonment is imposed it is important that victims and immediate family should understand its implications and consequences. Section 299A of the Criminal Procedure Act 51 of 1977 places judicial officers in a position to spend time with them, when present in court, not only to address their right to be present at future parole hearings, but also to ensure that they understand the sentencing process, their role in it, and relevant factors that influence the court’s decision. The rights awarded in section 299A allow victims of violent crimes and their immediate family to be informed about and to be involved in parole hearings by making representations relating to an impact statement, a statement of opposition, and recommendations on possible parole conditions. It is significant that instructions to the board and its personnel go further than the mere provision of information, as it is also instructive of a sympathetic and supporting attitude and approach towards complainants and family members. However, training in skills such as listening, and knowledge of victimology and psychology seem to be essential before they can perform their task in this new paradigm. Despite criticism of these innovations, the acknowledgment of victims’ interest in release procedures and respect for their feelings can contribute to upholding their dignity and offering them a voice, and may achieve justice in another sense. Had the sentence run its full course, Morales would have had a choice to be informed about, and to participate in, the parole proceedings of Gomez. Moreover, he would also have been informed of any escapes or transfers. Being a victim of violent crime is a traumatic event. If this trauma is not addressed it can cause the victim to suffer from post-traumatic stress disorder (PSD) on a long-term basis. Counselling of bereaved families after the murder of a relative is not always prioritised, as it should be. Proper support for victims of serious crime remains critical and in the absence thereof “the sting in the memory” of the wrong will often remain, which in turn can poison a person’s entire existence. Life without parole violates an offender’s right not to be treated or punished in a cruel, inhuman and degrading way, as well as the right to human dignity. The guiding constitutional principle regarding the concept of ubuntu further underscores the recognition and furtherance of the dignity and wholeness of all people. No sense of well-being can be experienced in permanent isolation without human interaction and visitation rights. Life-term offenders sentenced after 1 October 2004 become eligible for parole only after 25 years, as opposed to 20 years for those sentenced before this date. Correctional supervision and parole boards are constituted in a representative manner and, based on a case management system, objective guidelines must be followed in decision-making. In a democratic dispensation, Gomez, a young man at the time of sentencing, would, on assumption that his sentence had run its full course, have been released on full or day parole either after 20 or 25 years. Notwithstanding, Gomez’s own health might have played a role in effecting release before the expiry of the above terms, as medical parole remains an option to all offenders. Furthermore, even under a democratic dispensation, covert political motives may influence the decision surrounding early release. In any event, the future of Gomez would not have been determined by Morales’s need for revenge. Gomez would have been able to retain a measure of hope – to be released from prison based on future objective evaluation. The secret in their eyes provides a poignant illustration of the betrayal experienced by a widower when the state fails to fulfil its obligation to ensure proper execution of the perpetrator’s sentence, and in the pursuit of justice he himself becomes a lifelong victim. The film raises awareness with regard to the rights of victims and offenders during the post-sentence phase. It not only reaffirms the rationale underpinning a rights culture for both victims and offenders, but also illustrates the inherent tension between rights of victims and offenders in this phase and the acute need to strike a balance.