2.2 Human Rights in Criminal Justice and Criminal Laws and Sentencing Human Rights in Criminal Justice System is a burning question in the field of Human Rights which is executed by sentencing under the domestic criminal laws. In most of the cases, national criminal justice system fails to maintain the international standard of human rights. International human rights law lays down obligations of governments to act in certain ways or to refrain from certain acts. With respect to the criminal justice system, the State has an obligation to establish criminal law and systems sufficient to deter and respond to attacks on individuals. On the other hand, however, criminal laws must not go so far as to deny individual rights, including due process rights. Indeed, once accused of a criminal offence, an individual benefits from rights-based procedural and substantive safeguards. In this context, the State must establish a balance that ensures both the freedom and the protection of the individual as well as public safety and well-being. For the criminal justice system, this balance can be considered at three levels:
• With respect to what should, or should not, be a criminal offence;
• With respect to criminal justice penalties; and
• In the criminal justice process.
Though International Laws are soft law, so with some notable exceptions-such as the obligation to make all acts of torture a criminal offence and the prohibition on non-retroactive criminal offences, international human rights law does not usually specify directly what should, or should not, be a criminal offence in national law. Similarly, international human rights law does not usually specify directly the appropriate punishment for a particular crime. This is not to conclude that international human rights law has little to say on these matters. Rather, while the content of criminal laws and criminal penalties are left primarily to the discretion of States, there is the important proviso that criminal law and penalties must always avoid denying the rights of individuals. As such, international human rights law provides an agreed normative framework, against which criminalization and penalties are to be assessed. The question of whether a particular criminal law is inconsistent with international human rights must be assessed on a right-by-right basis. One reason for this is that while some rights (such as freedom of expression, for example) may be limited on the grounds of public safety, order, health, morals and the rights and freedoms of others, other rights may not be limited under any circumstances. In particular, the balance between State action and individual rights can be different when it comes to vulnerable groups. Indeed, human rights law can be said to have a particular focus on marginal groups, vulnerability, disadvantage and discrimination. Those accused of a criminal offence, those in prison, victims of human trafficking, persons suffering from health disorders, persons who are drug dependent, and broad groups such as women and children, all have particular vulnerabilities that human rights law aims to protect. Responses to crime, drugs and terrorism must be sure to protect the rights of vulnerable individuals who risk becoming the subject of criminal law and penalties. But what we see in practice? Though this concept is not providing an exhaustive list of possible rights violations related to criminal law and sentencing, it can provide some examples. Such as, with respect to victims of trafficking in persons, for instance, human rights guidelines are clear that trafficked persons should not be prosecuted for violations of immigration laws or for the activities in which they are involved as a direct consequence of being trafficked. Rather, victims of human trafficking must receive assistance and protection. With respect to children who use drugs and abuse alcohol, the United Nations Committee on the Rights of the Child considers that the right of the child to protection demands that such children should be treated as victims and not as criminals. Indeed, the United Nations Convention on the Rights of the Child, as the only core United Nations human rights treaty to refer specifically to drug use — has a strong focus on protection rather than punishment. With respect to human rights and drug laws, such statements do not mean that international human rights law can support a general “right to abuse drugs”. However, a number of human rights-based drug law cases including cases engaging the right to property and the right to freedom of religion, have found drug-related criminal laws to be legitimate limitations necessary to protect public safety, order, health or morals in the individual; at least in the individual circumstances of the case. This is not inconsistent. As set out above, whether State action is incompatible with international human rights law must be assessed on a right-by-right basis. Criminal laws may at the same time, infringe certain rights but not others. Where the establishment of criminal offences is required by other bodies of international law, such as the international drug conventions, human rights law still continues to apply. The International Narcotics Control Board recognizes that the obligation to establish certain criminal offences is subject to each State party’s constitutional principles and to basic legal concepts, including human rights. Whether or not an action is defined as a criminal offence in law is not however the only issue at hand. In some countries, administrative (non-criminal) penalties may be as severe, if not more severe, than under criminal law. International human rights law does not set out specifically what penalty should be applied for what crime. Nonetheless, the principle that the severity of penalties must not be disproportionate to the criminal offence is found in a wide body of human rights related standards. This principle includes the notions that imprisonment should be used as a penalty of last resort, and that the choice between penalties should take into consideration the likelihood of the offender being rehabilitated. While the principle applies equally to adults and children, the rule has seen particular development in the context of children in conflict with the law. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), for example, encompass the “principle of proportionality” hereby any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offender and the offence. In particular, the imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. In the context of drug laws and sentencing, the drug-control conventions generally require parties to establish a wide range of drug-related activities as criminal offences under their domestic law. Nonetheless, they permit parties to respond to them proportionally, including through alternatives to conviction or punishment for offences of a minor nature. Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice. Moreover, the criminal justice response should not be considered proportionate if it results in the denial of another individual human right. Where imprisonment for possession or use offences precludes access to appropriate drug-dependence treatment, for example, this may constitute a denial of the right to the highest attainable standard of health or even the right to freedom from cruel, inhuman or degrading treatment, rendering the criminal justice response de facto disproportionate. Where severe sentences for less serious offences such as personal possession can be passed on a summary or administrative basis, the door may be opened to acts of corruption by individual law enforcement officers, border police or criminal justice officials. At the extreme end of the scale of punishment, the use of the death penalty for those convicted solely of drug-related or economic offences raises grave human rights concerns. The International Covenant on Civil and Political Rights specifies that in countries which have not abolished the death penalty, the sentence of death may be imposed only for the “most serious crimes”. The concept of “most serious crimes” is limited to those where it can be shown that there was an intention to kill which resulted in the loss of life. The weight of opinion indicates that drug offences (such as possession and trafficking) and those of a purely economic nature do not meet this threshold. Moreover, States that have abolished the death penalty are prohibited to extradite any person to another country where he or she might face capital punishment. Despite such prohibitions, a considerable number of the retentionist States that continue to use capital punishment have carried out executions for drug offences in recent years. Overall, while human rights law does not usually direct the content of criminal laws or penalties per se, it does demand strict scrutiny to ensure that laws do not deny the rights of individuals. In the case of drug laws in particular, obligations to establish offences under the international drug conventions must be fulfilled while at the same time respecting a range of rights, including the right to health, to the protection of the child, to private and family life, to non-discrimination, to the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, and the right not to be subjected to arbitrary arrest or detention.2