Chapter introduction

Human Rights and Due Process

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2.2.2 Human Rights and Due Process
Crime is output of mind or brain of human what he obtains from society around him by his
Nature but it brings such conduct which is apprehending of the society. So the criminal justice system for treatment of such conduct should be fair which only can be possible by due process of law.
The expression “in accordance with law” does not include any law, but only laws which are (a) not volatile of fundamental rights, and (b) incorporates both procedural and substantive safeguards.4
In addition to its preoccupation with vulnerable and marginal groups, international human rights law has a specific concern for the manner in which the State achieves its goals. In international human rights law, the end, no matter how legitimate, can never justify abusive means. This is particularly true when it comes to the criminal justice system. Indeed, rights are an essential component of the rule of law, which itself requires equality before the law, accountability to the law, fairness in the application of the law, legal certainty, avoidance of arbitrariness and procedural and legal transparency. Such principles and the specific due process requirements of international human rights law apply irrespective of whether the indictment involves robbery, homicide, drug-related crime, corruption, trafficking in persons, transnational organized crime, or offences involving acts of terrorism. According to articles 10 and 11 of the Universal Declaration, the International Covenant on Civil and Political Rights sets out many of the core rights of the accused, including the right to be presumed innocent until proved guilty, the right to have adequate time and facilities for the preparation of a defense, the right to be tried without undue delay, and the right to have any conviction reviewed by a higher tribunal. This right to a fair and public hearing by a competent, independent and impartial tribunal is applicable in any case regarding the determination of criminal charges against individuals, or of their rights and obligations in law. In particular, human rights law demands that whenever a person is deprived of liberty, the detained person has the right to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. This right also applies to administrative, social care or public health procedures, including those that result in deprivation of liberty for the purposes of drug dependence treatment. As set out above, the question of lawfulness of detention must itself be determined on the basis that imprisonment should be used only as a penalty of last resort. Even where the crime is of a particularly serious nature, such rights must continue to be respected. All aspects of counter-terrorism law and practice, for example, must be in compliance with international human rights law, including the right to a fair trial. In practice, safeguards such as a timely judicial hearing to determine the legality of detention, the use of military courts only for military persons for offences of a military nature, equality of arms for the prosecution and the accused, full disclosure of prosecution materials, and freedom from political influence are basic elements for securing the right to a fair trial in terrorism cases. Due process guarantees must also be respected in all actions under the universal drugs and crime conventions. A number of convention provisions that are important in law enforcement terms nonetheless require careful judicial oversight in order to protect against the possibility of human rights infringement. For example, powers of seizure and confiscation of “drugs, substances and equipment” and “proceeds of crime, must be applied in a non-arbitrary, proportionate manner and depending upon the nature of the procedure in national law in conformity with the right to a fair trial. Such standards make it clear that, practices such as extra-judicial killing by law enforcement officers in drug enforcement operations, imprisonment without trial, denial of meals, forced labor, isolation and chaining, violence and beatings in detention centers for drug dependence “treatment” are absolutely prohibited. Indeed, where practices amount to torture, such acts should constitute a criminal offence under national law. State obligations to protect persons from such acts further extend to protection from acts carried out by private entities such as non-state treatment centers or security firms. The protection of the well-known prohibition on torture and cruel, inhuman or degrading treatment or punishment also includes the obligation not to return individuals to another country where they may be exposed to such practices. Moreover, the prohibition on torture is complemented by the positive requirements of the Covenant on Civil and Political Rights to treat all persons deprived of liberty with “humanity and respect for the inherent dignity of the person”. Human dignity is inextricably linked to the principle of non-discrimination. Effective law enforcement and criminal justice processes must ensure that law enforcement activities, such as searches and arrests are evidence-based and are not carried out solely on the grounds of considerations such as racial characteristics. Deployment of law enforcement officers for purposes, such as drug law enforcement must not disproportionately burden neighborhoods or communities exclusively on the basis of racial or ethnic profiles. In bringing those responsible for crimes related to illicit drug trafficking and terrorism to justice, Member States must ensure that the means employed are fully consistent with the rule of law and due process rights.5

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