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.