The Rule of Law and Human Rights
 



Part I:

Chapter 1:
Chapter 2:
Chapter 3:
Chapter 4: 
Chapter 5:
Chapter 6:
Chapter 7:
Chapter 8:
Chapter 9:

Part II









 


 Introduction

 Principles of the Rule of Law

 Essential Requirements of a Society under the Rule of Law
 The Legislature and the Rule of Law
 The Executive and the Rule of Law
 The Criminal Process and the Rule of Law
 The Judiciary and the Rule of Law
 The Legal Profession and the Rule of Law
 The Role of Legal Education in a Changing Society
 Economic and Social Development
 The Rule of Law and the Layman

 Guide to Human Rights Provisions

 Introduction
 Universal Declaration of Human Rights
 Act of Athens
 Declaration of Delhi
 Law of Lagos
 Resolution of Rio
 Declaration of Bangkok
 Declaration of Colombo
 Resolutions adopted at Congresses and Conventions of ICJ
 


Chapter 4: The Criminal Process and the Rule of Law
 


I.    Fundamental principles of penal law (Congress of Athens, Committee on Criminal Law, Resolution I)

1.    Every person accused of an offence has the right to be considered innocent so long as his guilt has not been proven in conformity with the law in the course of public proceedings which assure all the guarantees necessary for his defense.

Every accused must have at least the right:

(a) to be immediately informed, on all points and in a language comprehensible to him, of the nature and the grounds of the charge brought against him;

(b) to be accorded the possibility and sufficient time for the preparation of his defense;

(c) to defend himself or to obtain the assistance of a defense counsel of his own choice, and, should he not dispose of the means of remunerating such counsel, to be assisted gratuitously by a defense counsel ex officio if the seriousness of the charge or the interests of justice so require;

(d) to examine or cause to be examined, in his presence, the witnesses for the prosecution, and to obtain the subpoena and the hearing of witnesses for the defense under the same conditions as apply to witnesses for the prosecution and according to the ordinary rules of procedure;

(e) to ask for the gratuitous assistance of an interpreter when he does not understand the language in which debates are conducted or is unable to express himself in the language of the court. Only the factual situation alone, such as it may appear as the result of judicial debate, may be decisive in the condemnation of the accused.

2.    Since a free defense presupposes the liberty of the defense counsel, every lawyer called to represent an accused in a criminal matter must be permitted to prepare freely ağd integrally a defense corresponding to the requirements of justice, t6 communicate with the accused, and to plead, free of influence or hindrance by reason of instructions from an official organ or party.

The lawyer must be exempted from any claim for damages, either personal or professional, based on his assurance of a proper defense not offending the dignity of the court.

3.    No person shall be liable to prosecution for an act or omission which, at the time of its commission, was not punishable in either national or international law.

The principle of legality of offences and punishments must be respected even in political and economic matters. It is not admissible to create accusations and sanctions on the simple basis of analogy with other penal provisions.

4.    Everyone has the right to liberty and security. No one shall be arbitrarily arrested, detained or deported. A person may be deprived of his liberty in the following cases only, and in accord with the methods and forms of procedure legally prescribed:

(a) when he is regularly arrested or detained for the purpose of compelling him to execute an obligation imposed on him by law;

(b) when he is regularly arrested or detained for the purpose of assuring his appearance before the competent jurisdiction, insomuch as sufficient proof is available that the accused has committed a punishable offence and insofar as measures for public security and the administration of justice so require;

(c) when the person regularly arrested is a minor, the arrest being ordered for the purpose of supervised education or in view of bringing him before the competent authority.

(d) when the person is detained because he risks to spread a contagious disease, or because of mental illness, alcoholism, intoxication or vagrancy;

(e) when he is regularly arrested or detained for the purpose of preventing him from entering illegally on national territory, or because he is the object of a procedure for expulsion or extradition.

(f) when he is legally detained after conviction by a competent court.

Every person arrested must, without delay and in a language comprehensible to him, be informed of the grounds for his arrest and of the charges brought against him.

Every person arrested and detained while awaiting trial must, without delay, be brought before a judge or an official authorized to exercise judicial functions. He has the right to be judged within a reasonable lapse of time or to be released during the procedure; the release may be subordinated to the deposit of bail to guarantee appearance before the court.

Whoever is deprived of his liberty by arrest or detention has the right to demand a procedure by which a judicial authority may be called upon to determine without delay the legitimacy of the detention, and to order his release if it appears that such detention has not been effected in conformity with the law.

Any person victimized by arrest or detention in violation of these guarantees has the right to be indemnified.

5.    No person may be subjected to torture in any form whatsoever, or to cruel, inhuman or degrading treatment.

No person, deposing as witness or as the accused before an organ of preliminary investigation or official inquest, shall be subjected to physical or psychological pressure and compelled to make specific statements or a confession.

A witness or an accused may refuse to give evidence before an organ of the police or the prosecution, and may demand a hearing before a judge regarding the merits of the case. Even before a court, the accused is not obliged to make statements on the merits of the case which concern him directly.

6.    No person shall be subjected to cruel or inhuman punishment.

Every punishment must be determined within the bounds established by law. All the circumstances, both personal and those of fact, must be taken into consideration in order to arrive at an equitable sanction.

The punishment must not be inflicted exclusively for purposes of general intimidation, nor must it be imposed in a particularly severe manner for the purpose of utilizing convicted persons as an advantageous source of manual labor.

The recourse to appeal, provided for by ordinary procedure, must be extended to every accused or convicted person.

The execution of the punishment must also be humane; prisoners, labor should not be exploited. Discipline within prisons must be assured, but it cannot be realized through methods which are cruel or detrimental to the health of the prisoners.

Every prisoner has the right to demand from the competent authority an accurate inquest when he is of the opinion that these principles have been violated or when he feels that he is otherwise being treated unjustly. No penalty must be imposed on him by reason of a request or complaint of this nature.
 

II. The criminal process and the Rule of Law (Congress of Delhi, 1959, Committee III) 

The rights of the accused in criminal trials, however elaborately safeguarded on paper, may be ineffective in practice unless they are supported by institutions, the spirit and tradition of which limit the exercise of the discretions, whether in law or in practice, which belong in particular to the prosecuting authorities and to the police. Bearing that qualification in mind, an attempt has been made to answer the question: If a citizen of a country which observes the Rule of Law is charged with a criminal offence, to what rights would he properly consider himself entitled? This question has been considered under the heads which follow. It is for each country to maintain and develop in the framework of its own system of law the following rules which are regarded as the minimum necessary to ensure the observance of the Rule of Law.
 

1. Certainty of the criminal law 

It is always important that the definition and interpretation of the law should be as certain as possible, and this is of particular importance in the case of the criminal law, where the citizen's life or liberty may be at stake.
 

2. Retroactive legislatio 

Certainty cannot exist in the criminal law where the law, or the penalty for its breach, is retrospective. Retroactive legislation, especially in criminal matters, is inconsistent with the Rule of Law.
 

3. The presumption of innocence 

The application of the Rule of Law involves an acceptance of the principle that an accused person is assumed to be innocent until he has been proved to be guilty. An acceptance of this general principle is not inconsistent with provisions of law which, in particular cases, shift the burden of proof once certain facts creating a contrary presumption have been established. The personal guilt of the accused should be proved in each case.
 

4. Arrest and accusation 

(1)   The power of arrest, whether in flagrante delicto or not, ought to be strictly regulated by law, and should only be exercisable on reasonable suspicion that the person concerned has committed an offence.

(2)   On any arrest the arrested person should at once be told the grounds of his arrest.

(3)   On any arrest the arrested person should at once and at all times thereafter be entitled to the assistance of a legal adviser of his own choice, and on his arrest should at once be informed of that right in a way which he would clearly understand.

(4)   Every arrested person should be brought, within as short a period as possible, fixed by law, before an appropriate judicial authority.

(5)   After appearing before such judicial authority, any further detention should not be in the hands of the police.
 

5. Detention pending trial

(1)   No person should be deprived of his liberty except in so far as may be required for the purposes of public security or the administration of justice.

(2)   Every arrested person should have a right, renewable at reasonably short intervals, to apply for bail to an appropriate judicial authority. He should be entitled to bail on reasonable terms unless either:

(a) the charge is of an exceptionally serious nature, or

(b) the appropriate judicial authority is satisfied that, if bail is granted, the accused is not likely to stand his trial, or

(c) the appropriate judicial authority is satisfied that, if bail is granted, the accused is likely to interfere with the evidence, for example with witnesses for the prosecution, or

(d) the appropriate judicial authority is satisfied that, if bail is granted, the accused is likely to commit a further criminal offence.
 

6.    Preparation and conduct of defense

The Rule of Law requires that an accused person should have adequate opportunity to prepare his defense and this involves:

(1)   That he should at all times be entitled to the assistance of a legal adviser of his own choice, and to have freedom of communication with him.

(2)   That he should be given notice of the charge with sufficient particularity.

(3)   That he should have a right to produce witnesses in his defense and to be present when this evidence is taken.

(4)   That, at least in serious cases, he should be informed in sufficient time before the trial of the nature of the evidence to be called for by the prosecution.

(5)   That he should be entitled to be present when any evidence for the prosecution is given and to have the witnesses for the prosecution cross-examined.
 

7.    Minimum duties of the prosecution

The duty of the prosecution should be fairly to place the relevant evidence before the court, and not to obtain a conviction at all costs. If the prosecution has evidence favorable to the accused which it does not propose to use, it should put such evidence at the disposal of the accused or his legal adviser in sufficient time to enable him to make proper use of it.
 

8.    The examination of the accused 

No one should be compelled to incriminate himself. No accused person or witness should be subject to physical or psychological pressure (including anything calculated to impair his will or violate his dignity as a human being).

Postal or telephone communications should not be intercepted save in exceptional circumstances provided by law and under an order of an appropriate judicial authority.

A search of the accused's premises without his consent should only be made under an order of an appropriate judicial authority.

Evidence obtained in breach of any of these rights ought not to be admissible against the accused.
 

9. Trial in public 

The Rule of Law requires that criminal trials should ordinarily take place in public. The proper existence of exceptions to this rule is, however, recognized. The nature of these exceptions should be laid down by law and their application to the particular case should be decided by the court.

Criminal trials should be open to report by the press but it is not compatible with the Rule of Law that it should be permissible for newspapers to publish, either before or during a trial, a matter which is likely to prejudice the fair trial of the accused.
 

10. Retrial 

After a final conviction or acquittal no one should be tried again on the same facts, whether or not for the same offence.
 

11. Legal remedies, including appeals 

Every conviction and sentence and every refusal of bail should be challengeable before at least one higher court.

It is essential that there should be adequate remedies for the breach of any of the rights referred to above. The nature of those remedies must necessarily depend on the nature of the particular right infringed and the system of law which exists in the country concerned. Different systems of law may provide different ways of controlling the activities of the police and of the prosecuting and enquiring authorities.
 

12. Punishment 

The Rule of Law does not require any particular penal theory but it must necessarily condemn cruel, inhuman or excessive preventive measures or punishments, and supports the adoption of reformative measures wherever possible.
 

III. Personal liberty and the criminal process (Conference of Lagos, 1961, Committee II, cl. 6-9)
 

1.    The courts and magistrates shall permit an accused person to be or to remain free pending trial except in the following cases which are deemed proper grounds for refusing bail:

(a) in the case of a very grave offence;

(b) if the accused is likely to interfere with witnesses or impede the course of justice;

(c) if the accused is likely to commit the same or other offences;

(d) if the accused may fail to appear for trial.

2.    The power to grant bail is a judicial function which shall not be subject to control by the executive. Although a court should hear and consider the views and representations of the executive, the fact that investigation of the case is being continued is not a sufficient ground for refusing bail. Bail should be commensurate with the economic means of the accused and, whether by appeal or independent application, a higher court should have the power to release provisionally an accused person who has been denied bail by the lower court.

3.    After conviction and pending review, the trial or appellate court should have discretionary power to admit the convicted person to bail subject to the grounds set forth in paragraph 6 above.

4.    It is recommended that greater use be made of the summons requiring appearance in court to answer a criminal charge in place of arrest and the consequent necessity for bail and provisional release. 


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