Criminal procedure vs human rights: a cyclical understanding

Coleman, Michelle (2017) Criminal procedure vs human rights: a cyclical understanding. In: Strathclyde Postgraduate Law Conference 2017: The Revolutions of Law, 20 Oct 2017, University of Strathclyde, Glasgow.

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Abstract

From President Duterte’s sanctioning of extra-judicial killings of alleged drug-dealers, to President Trump’s recent remarks seemingly encouraging police brutality, to reports of high incidences of assault and torture by police officers in Brazil, government sanctioned violence is a global phenomenon. While the causes are complicated, the trend of government violence against citizens is part of a cycle that in part depends on the perceived importance of human rights.

Government sanctioned violence toward citizens is often disguised as crime control and is a type of governmental overreach that ebbs and flows throughout history. When examining history through the lens of human rights however, it is shown that at times, this violence can be stymied by an increased focus on human rights. The drafting of the Magna Carta, the French Revolution, and the modern development of international criminal law are all such points in time when human rights came to the forefront as a way to end and prevent future governmental violence.

This paper argues that (re)focusing criminal procedure on human rights can have a significant impact on reducing instances of governmental violence. It requires each government actor to focus on their role, rather than a perceived duty to distribute justice or punishment before a court determination. Taking a comparative approach between international criminal tribunals and regional human rights tribunals, this paper argues that as an example, the presumption of innocence is a human right that is under-utilized in the pre-charging stages of criminal procedure, and greater focus or awareness of this presumption could help shift pre-trial procedures to be more in line with the rule of law and decrease the instances of violence at the hands of the police. While not a panacea, creating more emphasis on human rights within criminal procedure can reduce the amount of government violence toward citizens.

Item Type: Conference or Workshop Item (Paper)
Research Areas: A. > School of Law
Item ID: 25376
Useful Links:
Depositing User: Michelle Coleman
Date Deposited: 12 Oct 2018 14:39
Last Modified: 15 Feb 2019 17:35
URI: http://eprints.mdx.ac.uk/id/eprint/25376

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