scholarly journals Fair Trial Rights and Their Relation to the Death Penalty in Africa

2006 ◽  
Vol 55 (3) ◽  
pp. 609-634 ◽  
Author(s):  
Lilian Chenwi
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Rule Of Law ◽  
Due Process ◽  
Basic Element ◽  
Fair Trial ◽  
Legal Rights ◽  
Criminal Cases ◽  
Human Rights Abuses ◽  
The Rule Of Law

A fair trial is a basic element of the notion of the rule of law,1 and the principles of ‘due process’ and ‘the rule of law’ are fundamental to the protection of human rights.2 At the centre of any legal system, therefore, must be a means by which legal rights are asserted and breaches remedied through the process of a fair trial in court, as the law is useless without effective remedies.3 The fairness of the legal process has a particular significance in criminal cases, as it protects against human rights abuses. Hence, constitutional due process and elementary justice require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved.4

Prosecutors and National Security

2021 ◽  
pp. 538-558
Author(s):  
Kent Roach
Keyword(s):  
Human Rights ◽  
National Security ◽  
Rule Of Law ◽  
Ethical Challenges ◽  
Criminal Cases ◽  
The Rule Of Law ◽  
The Third ◽  
Relative Rarity ◽  
The Many ◽  
Operational Aspects

This chapter examines the distinct operational and ethical challenges that prosecutors face in national security and especially terrorism cases. The second part of this chapter focuses on the operational challenges that prosecutors face. These include demands for specialization that may be difficult to fulfill given the relative rarity of national security prosecutions; the availability of special investigative powers not normally available in other criminal cases; exceptionally broad and complex offenses; and the demands of federalism and international cooperation. The third part examines ethical and normative challenges that run throughout the many operational aspects of the prosecutorial role in national security cases. These include the challenges of ensuring that often exceptional national security laws are enforced in a manner consistent with the rule of law and human rights. There are also challenges of maintaining an appropriate balance between legitimate claims of secrecy and legitimate demands for disclosure and between maintaining prosecutorial independence and discretion while recognizing the whole of government and whole of society effects of the many difficult decisions that prosecutors must make in national security cases.

scholarly journals The Citizens’ Constitutional Rights Regarding Habitable and Wholesome Environment: Towards a Law State that Protects the Environment

2020 ◽  
Vol 4 (1) ◽  
pp. 81
Author(s):  
Nyoman Satyayudha Dananjaya ◽  
Fuchikawa Kazuhiko
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Due Process ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Human Beings ◽  
Legal Research ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Protection Of Human Rights

This paper aims to examine the protection of the environment in Indonesia which is part of the realization of a law state that guarantees the constitutional rights of its citizens. It is a legal research that reviews Indonesian constitutional and statutory provisions, besides adding a comparative perspective from a Japanese Constitution and legal system. It is found that the concept of a law state in Indonesia does not specifically follow the concept of a law state like what is meant in “rechtsstaat” or “the rule of law”. It has peculiar characteristics which indeed seem to adopt the noble values ??of those two concepts which clearly confesses in the constitution along with the elements and characters stated in it. One of the most prominent characteristics of a law state is the recognition and protection of human rights. In the Indonesian Constitution 1945, human rights as the fundamental rights of human beings have been arranged and compiled which is legally legitimized become constitutional rights. Among human rights, rights related to the environment include essential rights in array of international human rights formulations. Article 28 letter H of the Indonesian Constitution 1945 expressly states the rights to habitable and wholesome environment for citizen. The protection form can be a normative arrangement in the constitution or in a formal juridical through legislation. Protection of citizens' constitutional rights related to the environment is faced with due process of environmental protection that requires consistency in order to achieve the intention and direction of the Indonesian law state itself.

Francis Karioko Muruatetu v. Republic

2018 ◽  
Vol 112 (4) ◽  
pp. 707-713
Author(s):  
Jacquelene Mwangi
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Death Penalty ◽  
Rule Of Law ◽  
Death Sentence ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
Trial Courts ◽  
The Supreme Court ◽  
Court Mandated

The decision of the Supreme Court of Kenya (Court) in Francis Karioko Muruatetu and Another v. Republic (Muruatetu), finding the mandatory nature of the death penalty unconstitutional, represents not only a victory for human rights in Africa but also the transformative capacity of contemporary constitutions in Africa and the growing assertiveness of African judiciaries. In the judgment, the Court held that the mandatory death penalty is “out of sync with the progressive Bill of Rights” in Kenya's 2010 Constitution (para. 64) and an affront to the rule of law. The Court also relied on global death penalty jurisprudence to find the mandatory death sentence “harsh, unjust and unfair” (para. 48). Consequently, the Court mandated that all trial courts conduct a pre-sentencing hearing to determine whether the death penalty is deserved. The Court's judgment could spell the end of the mandatory death penalty in Kenya after almost 120 years on the statute books.

The International Criminal Court’s Libya Case(s)—The Need for Consistency with International Human Rights as to Due Process and the Death Penalty

2017 ◽  
Vol 17 (5) ◽  
pp. 803-843 ◽  
Author(s):  
Jennifer Trahan
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Due Process ◽  
Fair Trial ◽  
International Human Rights ◽  
Level Regime ◽  
National Jurisdiction ◽  
Least Core ◽  
International Human ◽  
High Level

The icc’s Libya cases raise interesting questions about the icc’s interaction with national jurisdictions that retain the death penalty. In the case against Abdullah Al-Senussi, the icc ruled he could be tried in Libya—his case was ‘inadmissible’—despite Libya retaining the death penalty and despite fair trial concerns. Yet, Rome Statute Article 21.3 directs the Court to be consistent with international human rights. Is it consistent with international human rights to indirectly authorize trial in a country that retains the death penalty, under conditions that cannot guarantee at least core due process protections? This article argues that it is not. Furthermore, this article argues that the Appeals Chamber in Senussi was insufficiently concerned with due process violation in the national jurisdiction—in a situation one could well-anticipate a former high-level regime official would not receive a fair trial post-regime change.

Judicial Independence: The Threat from Within

2005 ◽  
Vol 38 (3) ◽  
pp. 120-153 ◽  
Author(s):  
Michal Agmon-Gonnen
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Justice System ◽  
Due Process ◽  
Judicial Independence ◽  
Judicial System ◽  
The Rule Of Law ◽  
Number Of Factors ◽  
The Right ◽  
Democratic Country

In a democratic country an independent justice system plays a major role in protecting human rights and the rule of law. However, an independent judicial system is at risk from a number of factors that derive from outside the sytsem as well as from within. The external dangers facing judicial independence are often discussed; whereas the internal perils that weaken the system as well as judicial independence, are far less known. This article will focus on the danger from within and will discuss the judicial administration's influence on human rights, specifically the right to due process under the law.

scholarly journals Principle of the Rule of Law in the Case-law of the European Court of Human Rights

1970 ◽  
pp. 373-379
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Fair Trial ◽  
Court Decisions ◽  
Legal Certainty ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
European Court ◽  
The Law ◽  
The Right

The article is devoted to the interpretation of the principle of rule of law in the practice of the European Court of Human Rights. The concept of the rule of law, along with democracy and human rights makes up the three pillars of the Council of Europe and is endorsed in the Preamble to the ECHR. The Preamble to the ECHR states that the governments of European countries are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law. The rights most obviously connected to the rule of law include: the right of access to justice, the right to a fair trial, the legal principle that measures which impose a burden should not have retroactive effects the right to an effective remedy, anyone accused of a crime is presumed innocent until proved guilty etc. The author concludes that there is an expediency of grouping separate requirements of the rule of law in the practice of the ECtHR around concepts, which are concluded to be elements of the rule of law in a democratic society. Such elements of the rule of law in the practice of the ECHR are recognized as legality, legal certainty, fairness of a trial and the priority of human rights. Legality supposes that authorities need a legal basis for measures which interfere with a right of an individual, as well as quality requirement for the law such as accessibility, foreseeability and no arbitrariness. Legal certainty encompasses foreseeability in application of the law; non-retroactivity of legislation; the principle of res judicata; mandatory execution of court decisions and consistency of judicial practice. Fair trial requirements devoted into two groups: general requirements (access to court, independent and impartial tribunal, execution of court decisions etc.) and requirements for criminal proceedings (presumption of innocence, principle nullum crimen sine lege etc.) It is noted that the legality, legal certainty, fairness of a trial are formal requirements of the rule of law, thus the priority of human rights is a substantive (material) requirement of the rule of law. The aforementioned testifies to the natural-legal approach that the ECHR is guided by in interpreting the rule of law in its practice, understanding it primarily as the rule of human rights.

Cause Lawyers

2020 ◽  
pp. 241-263
Author(s):  
Arzoo Osanloo
Keyword(s):  
Human Rights ◽  
Death Penalty ◽  
Rule Of Law ◽  
The Rule Of Law ◽  
Gift Economy ◽  
Criminal Defense ◽  
The Gift ◽  
Human Rights Advocacy

This chapter reflects on the work of criminal defense lawyers. Although engaged in forgiveness work, particularly post-sentencing, lawyers occupy a distinct position in relation to other actors. Lawyers who take up qisas cases, like anti-death penalty lawyers elsewhere, often possess a deeper agenda and, as cause lawyers, go beyond ethical self-fashioning or culture-building. They seek to enforce the rule of law. They work with and within the laws, but their ethically grounded advocacy risks placing them in the precarious space of apparent opposition to the system itself. The position of defense lawyers, whose rights-based advocacy sits in uncomfortable opposition to the gift economy of forgiveness, ultimately highlights the tensions of human rights advocacy in this climate.

scholarly journals Criminal Justice, Due Process and the Rule of Law in Mexico

2019 ◽  
Vol 11 (2) ◽  
pp. 147
Author(s):  
Paola I. de la Rosa Rodríguez
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Due Process ◽  
Criminal Activity ◽  
The Rule Of Law ◽  
Mexican Society ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Individual

The criminal justice process should not involve obtaining the truth at any price. This article discusses how Mexico has adopted exceptional regulations which violate due process considerations and create a problematic breach of the rule of law. We argue that, at a time when Mexican society suffers the consequences of organized crime, the Constitution provides for two types of regulations: one protecting human rights, which are the foundation of the rule of law; and another which infringes on the individual rights of those suspected of having participated in organized criminal activity. We examine mechanisms such as preventive detention and preventive imprisonment and analyze their treatment under Mexican law as well as in international agreements. We explore whether or not the fight against criminality and the prosecution of criminals “by any means necessary” is more important that the protection of the human rights of those suspected of illegal activity. We conclude by suggesting that the response to criminality should not require limitations on the constitutional freedoms of citizens.

Resilience, Adaptive Peacebuilding and Transitional Justice

2021 ◽  
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Transitional Justice ◽  
Large Scale ◽  
Social Systems ◽  
Mass Violence ◽  
Human Rights Abuses ◽  
The Rule Of Law ◽  
Resilience Framework ◽  
Post War

Processes of post-war reconstruction, peacebuilding and reconciliation are partly about fostering stability and adaptive capacity across different social systems. Nevertheless, these processes have seldom been expressly discussed within a resilience framework. Similarly, although the goals of transitional justice – among them (re)establishing the rule of law, delivering justice and aiding reconciliation – implicitly encompass a resilience element, transitional justice has not been explicitly theorised as a process for building resilience in communities and societies that have suffered large-scale violence and human rights violations. The chapters in this unique volume theoretically and empirically explore the concept of resilience in diverse societies that have experienced mass violence and human rights abuses. They analyse the extent to which transitional justice processes have – and can – contribute to resilience and how, in so doing, they can foster adaptive peacebuilding. This book is available as Open Access.

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