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, ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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.
