Human Rights and Criminal Justice

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Human Rights and Criminal Justice
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Major international law documents
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UNIVERSAL DECLARATION OF HUMAN RIGHTS????????????
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European Convention of Human Rights
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The United NationsINTERNATIONAL COVENANT
ONCIVIL AND POLITICAL RIGHTS????????????????????
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The areas of human rights within criminal justice
system
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Procedural and substantial law
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Example of substantial law Article 11 ICCPR Prot
4(1) ECHR No one shall be imprisoned merely on
the ground of inability to fulfill a contractual
obligation. ?????????????????????????????????????
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1. Arrest and detention
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Article 9 (Article 9 ICCPR) No one shall be
subjected to arbitrary arrest, detention or
exile. ?????????????????? ??????
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Article 9(2) ICCPR (Article 5(2) ECHR) Anyone
who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall
be promptly informed of any charges against him.
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Art. 9(3) ICCPR Art. 5(3) ECHR Anyone arrested
or detained on a criminal charge shall be brought
promptly before a judge or other officer
authorized by law to exercise judicial power and
shall be entitled to trial within a reasonable
time or to release. ??????????????????????????????
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It shall not be the general rule that persons
awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear
for trial ???????????????????????????????????????
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Article 9(4) ICCPR Art. 5(4) ECHR Anyone who is
deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a
court, in order that that court may decide
without delay on the lawfulness of his detention
and order his release if the detention is not
lawful.
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Article 8(Article 2.3 of ICCPR) Everyone has the
right to an effective remedy by the competent
national tribunals for acts violating the
fundamental rights.?????????????????????????????
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Article 9(5) ICCPR Art. 5(5) ECHR Anyone who has
been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.
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Article 10 (1) ICCPR All persons deprived of
their liberty shall be treated with humanity and
with respect for the inherent dignity of the
human person. ???????????????????????????????????
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Article 10 (2) Accused persons shall be
segregated from convicted persons and shall be
subject to separate treatment appropriate to
their status as unconvicted persons??????????????
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2. Judicial Proceedings
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Article 10 (Article 14 ICCPR, Art 6(1)
ECHR)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.?????????????????????????????????????
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Article 11.1 (Article 14(2) of ICCPR, Art 6(2)
ECHR) Everyone charged with a penal offence has
the right to be presumed innocent????????????????
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Article 11.2 No one shall be held guilty of any
penal offence on account of any act or omission
which did not constitute a penal offence at the
time when it was committed.??????????????????????
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Article 15 (2) ICCPR and Arti 7 (2) ECHR
addNothing shall prejudice the trial and
punishment of any person for any act or omission
which, at the time when it was committed, was
criminal according to the general principles of
law recognized by the community of nations.
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Article 14(7) ICCPR, Prot 7(4) ECHR No one
shall be liable to be tried or punished again for
an offence for which he has already been finally
convicted or acquitted??????????????????????
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Procedural rights of the accused according to
Article 14 (3) of ICCPR (compare with Art 6(3)
ECHR)
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To be informed promptly and in detail in a
language which he understands of the nature and
cause of the charge against him??????????????????
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2. To have adequate time and facilities for the
preparation of his defence and to communicate
with counsel of his own choosing
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3. To be tried without undue delay (ECHR
5(3))????????????????????????????????????????????
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4. To be tried in his presence, and to defend
himself in person or through legal assistance of
his own choosing????????????????????????????????
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to have legal assistance assigned to him, and
without payment by him in any such case if he
does not have sufficient means to pay for it
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5. To examine, or have examined, the witnesses
against him and to obtain the attendance and
examination of witnesses on his behalf under the
same conditions as witnesses against him
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6. To have the free assistance of an interpreter
if he cannot understand or speak the language
used in court ???????????????????????????????????
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7. Not to be compelled to testify against himself
or to confess guilt(ECHR is silent on this
issue) ??????????????????????????????????????????
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Article 14 ICCPR (Art 6(1) ECHR) any judgment
rendered in a criminal case or in a suit at law
shall be made public??????????????????
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Article 14 (5) Prot 7(2) ECHR Everyone convicted
of a crime shall have the right to his conviction
and sentence being reviewed by a higher tribunal
according to law. ???????????????????????????????
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Article 14 (6) ICCPR Prot 7(3) ECHR When a
new or newly discovered fact shows conclusively
that there has been a miscarriage of justice, the
person who has suffered punishment as a result of
such conviction shall be compensated according to
law
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3. Punishment
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Article 10 (3) ICCPR The penitentiary system
shall comprise treatment of prisoners the
essential aim of which shall be their reformation
and social rehabilitation. ??????????????????????
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Article 5 (Article 7 ICCPR, Article 3 ECHR) No
one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
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Protocol 6 ECHR prohibits death penalty
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Article 6 (ICCPR) In countries which have not
abolished the death penalty, sentence of death
may be imposed only for the most serious crimes
in accordance with the law in force at the time
of the commission of the crime???????????????????
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Anyone sentenced to death shall have the right
to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of
death may be granted in all cases.
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Juvenile justice
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Article 14 (4) ICCPR In the case of juvenile
persons, the procedure shall be such as will take
account of their age and the desirability of
promoting their rehabilitation.??????????????????
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Article 10 (3) ICCPR Juvenile offenders shall be
segregated from adults and be accorded treatment
appropriate to their age and legal
status.??????????????????????????????????????????
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Accused juvenile persons shall be separated from
adults and brought as speedily as possible for
adjudication.????????????????????????????????????
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Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age
and shall not be carried out on pregnant women.
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CASE OF MOISEYEV v. RUSSIA(Application no.
62936/00)
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In July, 1998 a South Korean diplomat was
apprehended by the Russian Federal Security
Service (the FSB) while receiving certain
materials from the applicant who worked in the
Russian Ministry of Foreign Affairs
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The applicant was arrested in July 1998.
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 Soon, the applicant was charged with high
treason. He was accused of having disclosed
classified information to a South Korean
intelligence agent.
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In January, March and May 1999, the applicant
attempted to challenge the orders authorising his
continued detention on remand.
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In August 1999 the bill of indictment was served
on the applicant.
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The applicant was refused permission to take a
copy of the indictment to his cell because the
document contained classified information. The
applicant could examine the indictment at the
special department.
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In December 1999 the Moscow City Court found the
applicant guilty as charged, sentenced him to
twelve years imprisonment and ordered
confiscation of his property.
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In July 2000 the Russian Supreme Court quashed
the conviction and remitted the case to the trial
court for a fresh examination.
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In September 2000 the Moscow City Court began
hearing the applicants case second time.
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November 2000, the court bench was changed
because the previous presiding judge had a long
sickness leave.
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In July 2001, the bench was changed twice without
giving reasons.
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In August 2001 the Moscow City Court convicted
the applicant of high treason committed in the
form of espionage.He was sentenced to four years
and six months imprisonment, with account for
the time served from July 1998, and confiscation
of his property.
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In January 2002 the Supreme Court upheld the
conviction.
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The applicant alleged inhuman treatment in
detention the condition of the cells,
transportation to the prison, (Art. 3), the
unreasonable time of proceedings - Art. 5 (3)
(4), the lack of legal defence - Art. 6 (3b,c),
inability to see the family often Art. 8.
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The frequent changes in the composition of the
court was considered as a lack of impartiality
and independence.
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The court ordered to pay compensation almost
30.000 Euro
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CASE OF CABALLERO v. THE UNITED
KINGDOM(Application no. 32819/96)
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In 1987 the applicant was convicted of
manslaughter by the Central Criminal Court,
London. His record sheet read manslaughter
heavy drinking session with female. In bed,
during which he sexually interferes with her.
Struggle ensues during which she dies.
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On 2 January 1996 the applicant was arrested by
the police on suspicion of attempted rape of his
next-door neighbour.
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refusal of bail was automatic
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Section 25 of the Criminal Justice and Public
Order Act 1994 (the 1994 Act)
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A person who was convicted of the crimes of
murderattempted murdermanslaughterrape or
attempted rape,shall not be granted bail.
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The applicant was convicted of attempted rape and
of assault occasioning actual bodily harm in
October 1996.
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four years imprisonment for the assault
conviction and to life imprisonment for the
attempted rape conviction.
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He alleged that the automatic denial of bail
prior to his trial constituted a violation of
Article 5 (3)
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During the proceedings, the UK acknowledged that
there was violation of human rights.