Jann K. Kleffner
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780199238453
- eISBN:
- 9780191716744
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238453.003.0006
- Subject:
- Law, Public International Law
This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, ...
More
This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, which have established jurisdiction that conforms to international law — an affirmative obligation to exercise their jurisdiction. That obligation is a uniform obligation applicable to all ICC crimes. Some doubt is expressed as to whether this essentially categorical obligation is entirely satisfactory. While it is a well-founded general rule, account should have been taken (or should be taken in the future) of the fact that there might be exceptions to that rule. However, the Statute fails to accommodate genuine alternatives to criminal prosecutions and does not set forth parameters, which could guide States in considering whether and under what conditions they may opt for mechanisms such as truth commissions, traditional forms of justice, and the exercise of prosecutorial discretion.Less
This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, which have established jurisdiction that conforms to international law — an affirmative obligation to exercise their jurisdiction. That obligation is a uniform obligation applicable to all ICC crimes. Some doubt is expressed as to whether this essentially categorical obligation is entirely satisfactory. While it is a well-founded general rule, account should have been taken (or should be taken in the future) of the fact that there might be exceptions to that rule. However, the Statute fails to accommodate genuine alternatives to criminal prosecutions and does not set forth parameters, which could guide States in considering whether and under what conditions they may opt for mechanisms such as truth commissions, traditional forms of justice, and the exercise of prosecutorial discretion.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0002
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
This chapter discusses the scope of application of a person's right to a fair trial in criminal matters. An examination of the cases in which a violation of Article 6 of the European Convention on ...
More
This chapter discusses the scope of application of a person's right to a fair trial in criminal matters. An examination of the cases in which a violation of Article 6 of the European Convention on Human Rights (ECHR) has been found reveals two distinct types of case: the ordinary cases, criminal proceedings where something went wrong as a result of inadequate legislation, neglect, arbitrariness, or some other reason; cases where, from the domestic point of view, nothing went wrong. The chapter discusses the notion of ‘criminal’, the autonomous notion of the term ‘criminal charge’, three criteria which must be applied in order to decide whether a charge has a criminal character or not, the substance of the three criteria, disciplinary matters as ‘civil rights and obligations’, critical appraisal of the case-law of the ECHR, the notion of ‘charge’, and rights of the victim.Less
This chapter discusses the scope of application of a person's right to a fair trial in criminal matters. An examination of the cases in which a violation of Article 6 of the European Convention on Human Rights (ECHR) has been found reveals two distinct types of case: the ordinary cases, criminal proceedings where something went wrong as a result of inadequate legislation, neglect, arbitrariness, or some other reason; cases where, from the domestic point of view, nothing went wrong. The chapter discusses the notion of ‘criminal’, the autonomous notion of the term ‘criminal charge’, three criteria which must be applied in order to decide whether a charge has a criminal character or not, the substance of the three criteria, disciplinary matters as ‘civil rights and obligations’, critical appraisal of the case-law of the ECHR, the notion of ‘charge’, and rights of the victim.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0002
- Subject:
- Law, Criminal Law and Criminology
This chapter examines situations in which ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair ...
More
This chapter examines situations in which ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality’. Topics discussed include the rule against double jeopardy; circumvention of time limits and improper prosecutorial motives; repeated committal proceedings; deprivation of a right to a particular type of trial; improper consideration of criteria for prosecution; and private prosecutions.Less
This chapter examines situations in which ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality’. Topics discussed include the rule against double jeopardy; circumvention of time limits and improper prosecutorial motives; repeated committal proceedings; deprivation of a right to a particular type of trial; improper consideration of criteria for prosecution; and private prosecutions.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0001
- Subject:
- Law, Criminal Law and Criminology
This chapter begins with a brief discussion of the primary aim of the book, which is to analyse the courts' power to stay criminal proceedings which are deemed as an ‘abuse of the process of the ...
More
This chapter begins with a brief discussion of the primary aim of the book, which is to analyse the courts' power to stay criminal proceedings which are deemed as an ‘abuse of the process of the court’. It then discusses the origins of the doctrine and its use in civil litigation, entrenchment of the doctrine in the criminal sphere, the nature of a stay, and aspects of criminal justice. A brief introduction to the law on abuse of process is presented.Less
This chapter begins with a brief discussion of the primary aim of the book, which is to analyse the courts' power to stay criminal proceedings which are deemed as an ‘abuse of the process of the court’. It then discusses the origins of the doctrine and its use in civil litigation, entrenchment of the doctrine in the criminal sphere, the nature of a stay, and aspects of criminal justice. A brief introduction to the law on abuse of process is presented.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0007
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
The right to be presumed innocent is spelled out in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on ...
More
The right to be presumed innocent is spelled out in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR). The restriction of the application of the specific fair-trial rights to criminal proceedings, as opposed to civil, administrative, disciplinary, or other proceedings, is legitimate. This chapter discusses the general characteristics of the guarantee of the right to be presumed innocent, and presents definitions of ‘charged with a criminal offence’, ‘presumed’, ‘innocent’, ‘proved’ guilty, and proved guilty ‘according to law’. The relationship between the presumption of innocence and other aspects of the right to a fair trial is discussed, along with the specific problems arising with the guarantee, the ‘outcome-related’ aspects of the guarantee, and the ‘reputation-related’ aspects of the guarantee.Less
The right to be presumed innocent is spelled out in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR). The restriction of the application of the specific fair-trial rights to criminal proceedings, as opposed to civil, administrative, disciplinary, or other proceedings, is legitimate. This chapter discusses the general characteristics of the guarantee of the right to be presumed innocent, and presents definitions of ‘charged with a criminal offence’, ‘presumed’, ‘innocent’, ‘proved’ guilty, and proved guilty ‘according to law’. The relationship between the presumption of innocence and other aspects of the right to a fair trial is discussed, along with the specific problems arising with the guarantee, the ‘outcome-related’ aspects of the guarantee, and the ‘reputation-related’ aspects of the guarantee.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0004
- Subject:
- Law, Criminal Law and Criminology
This chapter examines to what extent pre-trial police misconduct may lead to a prosecution being stayed as an abuse of process. It shows that it is possible for a stay of proceedings to be ordered on ...
More
This chapter examines to what extent pre-trial police misconduct may lead to a prosecution being stayed as an abuse of process. It shows that it is possible for a stay of proceedings to be ordered on account of pre-trial police misconduct that does not have the potential to affect in any way the ability of the trial to determine the defendant's guilt or innocence accurately. The courts need to determine whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. This determination needs to take into account factors such as the seriousness of any violation of the defendant's rights; whether the police have acted in bad faith or maliciously, or with improper motives; whether the misconduct was committed in circumstances of urgency, emergency, or necessity; the availability of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged.Less
This chapter examines to what extent pre-trial police misconduct may lead to a prosecution being stayed as an abuse of process. It shows that it is possible for a stay of proceedings to be ordered on account of pre-trial police misconduct that does not have the potential to affect in any way the ability of the trial to determine the defendant's guilt or innocence accurately. The courts need to determine whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. This determination needs to take into account factors such as the seriousness of any violation of the defendant's rights; whether the police have acted in bad faith or maliciously, or with improper motives; whether the misconduct was committed in circumstances of urgency, emergency, or necessity; the availability of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0006
- Subject:
- Law, Criminal Law and Criminology
This chapter considers various procedural issues associated with the exercise of the judicial power to stay proceedings as an abuse of process. It is shown that while the exercise of judicial ...
More
This chapter considers various procedural issues associated with the exercise of the judicial power to stay proceedings as an abuse of process. It is shown that while the exercise of judicial discretion is indispensable to the attainment of individualized justice, it does have the potential to lead to uncertainty and unpredictability. However, such problems are likely to be minimized if discretion is appropriately confined, structured, and checked. How this might be achieved in relation to the abuse of process discretion is discussed. Specific procedural issues associated with the exercise of the abuse of process discretion both in the Crown Court and in magistrates' courts are also examined.Less
This chapter considers various procedural issues associated with the exercise of the judicial power to stay proceedings as an abuse of process. It is shown that while the exercise of judicial discretion is indispensable to the attainment of individualized justice, it does have the potential to lead to uncertainty and unpredictability. However, such problems are likely to be minimized if discretion is appropriately confined, structured, and checked. How this might be achieved in relation to the abuse of process discretion is discussed. Specific procedural issues associated with the exercise of the abuse of process discretion both in the Crown Court and in magistrates' courts are also examined.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.001.0001
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
During the last 50 years, interest in human rights has grown dramatically. While newspapers focus mainly on dramatic issues such as unlawful killing, torture, disappearances, or violations of freedom ...
More
During the last 50 years, interest in human rights has grown dramatically. While newspapers focus mainly on dramatic issues such as unlawful killing, torture, disappearances, or violations of freedom of speech, institutions charged with the implementation of human rights (as set out in international conventions and covenants) most frequently deal with allegations of human rights violations during criminal proceedings. The increasing internationalisation of the administration of criminal law means that such cases are likely to become ever more important. This book examines the case-law of the international bodies dealing with such cases. The European Commission and the European Court of Human Rights, in particular, have accumulated a considerable quantity of case-law, which is particularly interesting because it is intended to be valid in both Anglo-Saxon and Continental systems of criminal procedure. The law of the European Convention on Human Rights is emphasised because of its advanced procedures and the quality and quantity of its case-law.Less
During the last 50 years, interest in human rights has grown dramatically. While newspapers focus mainly on dramatic issues such as unlawful killing, torture, disappearances, or violations of freedom of speech, institutions charged with the implementation of human rights (as set out in international conventions and covenants) most frequently deal with allegations of human rights violations during criminal proceedings. The increasing internationalisation of the administration of criminal law means that such cases are likely to become ever more important. This book examines the case-law of the international bodies dealing with such cases. The European Commission and the European Court of Human Rights, in particular, have accumulated a considerable quantity of case-law, which is particularly interesting because it is intended to be valid in both Anglo-Saxon and Continental systems of criminal procedure. The law of the European Convention on Human Rights is emphasised because of its advanced procedures and the quality and quantity of its case-law.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter discusses the applicability of the abuse of process doctrine in the context of delay, lost or destroyed evidence, and adverse publicity. It presents considerations that are relevant to a ...
More
This chapter discusses the applicability of the abuse of process doctrine in the context of delay, lost or destroyed evidence, and adverse publicity. It presents considerations that are relevant to a determination of whether proceedings should be stayed as an abuse of process on account of delay. The case of R (Ebrahim) v Feltham Magistrates' Court is cited to provide guidance on the extent to which proceedings might be stayed as an abuse of process on account of the non-availability of evidence. It is also shown that courts have not been willing to accede to submissions that publicity before a trial has made a fair trial impossible, holding that directions from the judge will result in the jury disregarding such publicity.Less
This chapter discusses the applicability of the abuse of process doctrine in the context of delay, lost or destroyed evidence, and adverse publicity. It presents considerations that are relevant to a determination of whether proceedings should be stayed as an abuse of process on account of delay. The case of R (Ebrahim) v Feltham Magistrates' Court is cited to provide guidance on the extent to which proceedings might be stayed as an abuse of process on account of the non-availability of evidence. It is also shown that courts have not been willing to accede to submissions that publicity before a trial has made a fair trial impossible, holding that directions from the judge will result in the jury disregarding such publicity.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0010
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
The International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR) feature the right of an accused to ...
More
The International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR) feature the right of an accused to defend himself or herself and to have the assistance of counsel (the right to a defence) as one of the minimum rights or guarantees of every accused. This chapter discusses the origins of the guarantee, the structure of Article 6 section 3(c) of the ECHR, the purpose of the right to a defence, the absolute character of the right to a defence, the scope of the application of the right to a defence including the right to legal assistance outside criminal proceedings, the right to defend oneself, the right to the assistance of counsel of one's own choosing, the right to legal aid, the right to contact with counsel, and the right to the effective assistance of counsel.Less
The International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR) feature the right of an accused to defend himself or herself and to have the assistance of counsel (the right to a defence) as one of the minimum rights or guarantees of every accused. This chapter discusses the origins of the guarantee, the structure of Article 6 section 3(c) of the ECHR, the purpose of the right to a defence, the absolute character of the right to a defence, the scope of the application of the right to a defence including the right to legal assistance outside criminal proceedings, the right to defend oneself, the right to the assistance of counsel of one's own choosing, the right to legal aid, the right to contact with counsel, and the right to the effective assistance of counsel.
Salvatore Zappalà
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199258918
- eISBN:
- 9780191718120
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258918.003.0007
- Subject:
- Law, Human Rights and Immigration, Private International Law
This chapter concludes that human rights protection before international court is, to a large extent, satisfactorily ensured. It discusses that the Nuremberg and Tokyo trials cannot be said to be ...
More
This chapter concludes that human rights protection before international court is, to a large extent, satisfactorily ensured. It discusses that the Nuremberg and Tokyo trials cannot be said to be fair trials in modern terms. It notes that criminal procedure is a method of establishment of judicial truth, which is never absolute. Its correct determination lies upon full respect for the rules laid down for the establishment of guilt innocence. The chapter also offers some suggestions for improving human rights protection in international criminal proceedings.Less
This chapter concludes that human rights protection before international court is, to a large extent, satisfactorily ensured. It discusses that the Nuremberg and Tokyo trials cannot be said to be fair trials in modern terms. It notes that criminal procedure is a method of establishment of judicial truth, which is never absolute. Its correct determination lies upon full respect for the rules laid down for the establishment of guilt innocence. The chapter also offers some suggestions for improving human rights protection in international criminal proceedings.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0005
- Subject:
- Law, Criminal Law and Criminology
This chapter examines the manner in which allegations of entrapment, which typically arise in the context of undercover operations, have been dealt with in English law. Entrapment occurs when an ...
More
This chapter examines the manner in which allegations of entrapment, which typically arise in the context of undercover operations, have been dealt with in English law. Entrapment occurs when an agent of the state — usually a law enforcement officer or a controlled informer — causes someone to commit an offence in order that he should be prosecuted. The absence of a substantive defence of entrapment in England and Wales, the contemporary English approach to entrapment, and application of the abuse of process doctrine are discussed.Less
This chapter examines the manner in which allegations of entrapment, which typically arise in the context of undercover operations, have been dealt with in English law. Entrapment occurs when an agent of the state — usually a law enforcement officer or a controlled informer — causes someone to commit an offence in order that he should be prosecuted. The absence of a substantive defence of entrapment in England and Wales, the contemporary English approach to entrapment, and application of the abuse of process doctrine are discussed.
Brent Garland and Mark S. Frankel
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195340525
- eISBN:
- 9780199867219
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340525.003.0005
- Subject:
- Law, Criminal Law and Criminology
This chapter begins by considering some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both ...
More
This chapter begins by considering some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, as well as how each field might be applied in criminal proceedings. It then focuses on a common concern raised by both fields in this context—the possible misuse of science in the criminal law. It concludes with a proposal to address the need for a continuing policy dialogue about the law and scientific developments in neuroscience and behavioral genetics.Less
This chapter begins by considering some of the commonalities and differences between behavioral genetics and neuroscience as they relate to the criminal law, including topics addressed by both fields, as well as how each field might be applied in criminal proceedings. It then focuses on a common concern raised by both fields in this context—the possible misuse of science in the criminal law. It concludes with a proposal to address the need for a continuing policy dialogue about the law and scientific developments in neuroscience and behavioral genetics.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0006
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
In one of its first judgments, the European Court of Human Rights clearly and convincingly set out the purpose of the right to be tried within a reasonable time: the precise aim of this provision in ...
More
In one of its first judgments, the European Court of Human Rights clearly and convincingly set out the purpose of the right to be tried within a reasonable time: the precise aim of this provision in criminal matters is to ensure that accused persons do not have to lie under a charge for too long and that the charge is determined. This chapter discusses the origins and purpose of the guarantee of the right be tried within a reasonable time, the length of proceedings and length of detention on remand, the beginning of the relevant period, the end of the relevant period, the importance of the criminal proceedings for the accused, the complexity of the case, the conduct of the domestic authorities, and compensation for the excessive length of proceedings.Less
In one of its first judgments, the European Court of Human Rights clearly and convincingly set out the purpose of the right to be tried within a reasonable time: the precise aim of this provision in criminal matters is to ensure that accused persons do not have to lie under a charge for too long and that the charge is determined. This chapter discusses the origins and purpose of the guarantee of the right be tried within a reasonable time, the length of proceedings and length of detention on remand, the beginning of the relevant period, the end of the relevant period, the importance of the criminal proceedings for the accused, the complexity of the case, the conduct of the domestic authorities, and compensation for the excessive length of proceedings.
Andrew L-T Choo
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199280834
- eISBN:
- 9780191712876
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280834.003.0007
- Subject:
- Law, Criminal Law and Criminology
This chapter presents a synthesis of discussions in the preceding chapters and some concluding thoughts from the author. It argues that the existence of a judicial discretion to stay criminal ...
More
This chapter presents a synthesis of discussions in the preceding chapters and some concluding thoughts from the author. It argues that the existence of a judicial discretion to stay criminal proceedings which are an abuse of the process of the court is now a deeply entrenched part of English criminal procedure. It discusses issues that must be addressed to ensure the smooth and coherent development of the abuse of process doctrine. The chapter concludes by stating that the abuse of process doctrine must ultimately be left to the exercise of judicial good sense, which should be accompanied by a clear judicial articulation of the reasoning that has been employed to determine the success or otherwise of the abuse of process application at hand.Less
This chapter presents a synthesis of discussions in the preceding chapters and some concluding thoughts from the author. It argues that the existence of a judicial discretion to stay criminal proceedings which are an abuse of the process of the court is now a deeply entrenched part of English criminal procedure. It discusses issues that must be addressed to ensure the smooth and coherent development of the abuse of process doctrine. The chapter concludes by stating that the abuse of process doctrine must ultimately be left to the exercise of judicial good sense, which should be accompanied by a clear judicial articulation of the reasoning that has been employed to determine the success or otherwise of the abuse of process application at hand.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0011
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
With respect to the right to test witness evidence, the European Convention on Human Rights (ECHR) guarantee has a role in ensuring that the adversarial character of the proceedings is upheld. The ...
More
With respect to the right to test witness evidence, the European Convention on Human Rights (ECHR) guarantee has a role in ensuring that the adversarial character of the proceedings is upheld. The defence must be given a fair chance to challenge evidence against the accused and to bring its own evidence. This must be granted under the same conditions as those applicable to the prosecution, which serves the general principle of equality of arms. This chapter discusses the origins, purpose, and character of the guarantee, along with the proximity to the establishment of the facts, the relevance of the statement as evidence, the model of full compliance with the guarantee, the problems arising with the guarantee, definition of the term ‘witness’, the right to question witnesses at different stages of the criminal proceedings, the exercise of the right to test witness evidence, limitations of the right to test witness evidence, the right to call witnesses, and the equality-of-arms aspect of this right.Less
With respect to the right to test witness evidence, the European Convention on Human Rights (ECHR) guarantee has a role in ensuring that the adversarial character of the proceedings is upheld. The defence must be given a fair chance to challenge evidence against the accused and to bring its own evidence. This must be granted under the same conditions as those applicable to the prosecution, which serves the general principle of equality of arms. This chapter discusses the origins, purpose, and character of the guarantee, along with the proximity to the establishment of the facts, the relevance of the statement as evidence, the model of full compliance with the guarantee, the problems arising with the guarantee, definition of the term ‘witness’, the right to question witnesses at different stages of the criminal proceedings, the exercise of the right to test witness evidence, limitations of the right to test witness evidence, the right to call witnesses, and the equality-of-arms aspect of this right.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0016
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
The guarantee of protection against double jeopardy in criminal proceedings is rather complex. This chapter compares the texts of the different normative instruments and discusses the development of ...
More
The guarantee of protection against double jeopardy in criminal proceedings is rather complex. This chapter compares the texts of the different normative instruments and discusses the development of the guarantee as a human right. The aim and purpose of the right, its relationship with Article 6 section 1 of the European Convention on Human Rights (ECHR), the scope of its application, and the exceptions to the principle are examined. The protection against double jeopardy as an element of the right to a fair trial is considered, along with the territorial application of the guarantee, the scope of application ratione materiae, the first and second trials, and identical criminal offences.Less
The guarantee of protection against double jeopardy in criminal proceedings is rather complex. This chapter compares the texts of the different normative instruments and discusses the development of the guarantee as a human right. The aim and purpose of the right, its relationship with Article 6 section 1 of the European Convention on Human Rights (ECHR), the scope of its application, and the exceptions to the principle are examined. The protection against double jeopardy as an element of the right to a fair trial is considered, along with the territorial application of the guarantee, the scope of application ratione materiae, the first and second trials, and identical criminal offences.
Salvatore Zappalà
- Published in print:
- 2003
- Published Online:
- January 2010
- ISBN:
- 9780199258918
- eISBN:
- 9780191718120
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258918.001.0001
- Subject:
- Law, Human Rights and Immigration, Private International Law
This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the ...
More
This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyzes the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Second, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth, by among other things gathering evidence that might exonerate the accused. Third, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights, and in addition should be laid down in the Statutes of the ICTY and ICTR.Less
This book takes a procedural approach to human rights guarantees in international criminal proceedings and covers both the systems of the ad hoc Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. It analyzes the rights conferred on individuals involved in international criminal trials from the commencement of investigations to the sentencing stage, as well as the procedural rights of victims and witnesses. The study focuses on problems which have emerged in three main areas: (i) length of proceedings; (ii) absence of specific sanctions and other remedies for violation of procedural rules; (iii) the need to strengthen the protection of the accused from undue interference with his rights (likely to be caused by a variety of factors, such as conflicting governmental interests, the presence of malicious witnesses, or inadequate legal assistance). Three general suggestions are made to reduce the impact of these weaknesses. First, it could be helpful to adopt specific sanctions for violation of procedural rules (such as, the exclusion of evidence as a remedy for violations of rules on discovery). Second, (as has already been provided for in the ICC Statute,) the Prosecutor of the ad hoc Tribunals should play a proactive role in the search for the truth, by among other things gathering evidence that might exonerate the accused. Third, the right of compensation for unlawful arrest (or detention) and unjust conviction, provided for in the ICC Statute, should be extended to other serious violations of fundamental rights, and in addition should be laid down in the Statutes of the ICTY and ICTR.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0017
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
This chapter discusses deprivations of liberty and the rules on imprisonment. The character of the human rights involved in this context differs markedly from those in relation to the guarantee of a ...
More
This chapter discusses deprivations of liberty and the rules on imprisonment. The character of the human rights involved in this context differs markedly from those in relation to the guarantee of a fair trial. The intervention of the human rights instruments is designed to restrain the prosecution authorities, to ensure that measures such as detention, wire-tapping, and search and seizure are based on appropriate legal regulations, and to restrict any interference to a degree which can reasonably be accepted as ‘necessary’. The importance of personal liberty in criminal proceedings is discussed, along with the notion of personal liberty, the notion of security of person, arrest and detention, coercion and waiver, relativity of the notion of deprivation of liberty, exceptions to liberty of person, specific aspects of lawfulness of detention on remand, and detention to prevent unauthorised entry.Less
This chapter discusses deprivations of liberty and the rules on imprisonment. The character of the human rights involved in this context differs markedly from those in relation to the guarantee of a fair trial. The intervention of the human rights instruments is designed to restrain the prosecution authorities, to ensure that measures such as detention, wire-tapping, and search and seizure are based on appropriate legal regulations, and to restrict any interference to a degree which can reasonably be accepted as ‘necessary’. The importance of personal liberty in criminal proceedings is discussed, along with the notion of personal liberty, the notion of security of person, arrest and detention, coercion and waiver, relativity of the notion of deprivation of liberty, exceptions to liberty of person, specific aspects of lawfulness of detention on remand, and detention to prevent unauthorised entry.
Stefan Trechsel
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199271207
- eISBN:
- 9780191709623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199271207.003.0020
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
Most of the measures of coercion applied in criminal proceedings constitute intrusions into the private sphere of the suspect and sometimes also third persons. Another area which is particularly ...
More
Most of the measures of coercion applied in criminal proceedings constitute intrusions into the private sphere of the suspect and sometimes also third persons. Another area which is particularly relevant is the interception of communications and the censorship of correspondence. This can take many different forms depending on the type of communication and can involve written correspondence, telephone conversations, or electronic communication such as e-mail. Conversations can be recorded and behaviour can be subjected to surveillance through the use of devices able to record sound and/or images. This chapter discusses the interference with the right to respect for private life, the basic structure of the protection of private life, the requirement of lawfulness, surveillance and interception of communications, interception of written correspondence, the case-law, principles concerning prisoners' correspondence, technical surveillance, storage of data, undercover agents, search and seizure, and protection of property.Less
Most of the measures of coercion applied in criminal proceedings constitute intrusions into the private sphere of the suspect and sometimes also third persons. Another area which is particularly relevant is the interception of communications and the censorship of correspondence. This can take many different forms depending on the type of communication and can involve written correspondence, telephone conversations, or electronic communication such as e-mail. Conversations can be recorded and behaviour can be subjected to surveillance through the use of devices able to record sound and/or images. This chapter discusses the interference with the right to respect for private life, the basic structure of the protection of private life, the requirement of lawfulness, surveillance and interception of communications, interception of written correspondence, the case-law, principles concerning prisoners' correspondence, technical surveillance, storage of data, undercover agents, search and seizure, and protection of property.
