Impunity fosters an atmosphere
of unethical behaviour, fraud and corruption. Prosecution ensures that persons
suspected of crimes are tried in a court of law and sentenced if found guilty.
Prosecution leading to punishment holds offenders accountable for their actions
and serves as a deterrent for those who might consider illegal acts.
In most legal systems
prosecution is a matter for criminal law, which regulates conduct by
individuals and defines crimes and punishments. Most systems treat criminal
acts as violations of the public order, and so the government is responsible
for prosecuting these acts. Where a case is to be prosecuted is determined by
which law was broken and whether it was a national, provincial or local law.
The court or judicial body that will hear and decide on the case must have the
authority to do so.
Most criminal law systems
recognize at least two types of offences according to their seriousness. These are commonly referred to in English as
felonies and misdemeanours. Misdemeanours are lesser offences such as
disorderly conduct and petty theft. Most misdemeanour cases involve an
appearance before a judge or magistrate rather than a trial, with the
punishment being a fine or limited jail sentence. Felonies are more serious
offences, and usually involve arrest and trial.
(In some systems, there is a third, less serious, level of criminal or
civil responsibility, sometimes referred to as a “violation”, for which the
procedures and sanctions are even more limited.)
Integrity
in the Administration of Justice
Integrity in the
administration of justice is very important for the entire electoral system.
Integrity in this sense means that laws are equitable and fair, and the procedures
for applying them must follow the legal rules, and protect civil and political
rights. Prosecutors, judges and juries must not only follow the prescribed procedures
but maintain the highest level of professional and ethical behaviour. Integrity in the administration of justice
ensures that police and other enforcement authorities will not act for
political or personal ends, and that the accused have the opportunity to
present a defence. These principles are
founded on international law (the ICCPR),[1] and
are specifically applicable to elections.[2]
To safeguard integrity in
prosecutions and the administration of justice, a number of mechanisms are
often put in place:
Lawful
Arrest and Arraignment
For a suspect to be arrested
and charged, there must usually be sufficient evidence linking that individual
to the offence. Unless the police catch someone in the act, an arrest generally
requires a warrant.
In most legal systems,
arresting officers inform accused persons of their rights and ask whether they
understand them. The accused are usually taken before a court to be charged within
a reasonable time, when they may enter a plea of guilty or not guilty. This
process is called arraignment; speedy arraignment protects against arbitrary
arrest, prolonged detention or unethical police tactics.
The judge or magistrate usually
determines whether it is necessary for the accused to remain in custody until
trial. In many legal systems an accused person is presumed innocent until
proven guilty, but the presumption of innocence is not a universal norm. Still,
unless the case involves a serious felony or a violent offence, most defendants
are freed on bail. Some systems have a separate safeguard mechanism (sometimes
referred to in “law Latin” as the writ of Habeas
corpus, or “You have the body”) that enables the suspect to challenge the
lawfulness of an arrest or detention.
Pre-Trial
Disclosure
To ensure a fair trial, most
systems allow the defendants and their attorneys access to the evidence that
will be used against them in court. In some systems, the defence has the right
of access to all evidence collected, whether or not it will be used by the
prosecution.
Usually the defence is not
given access to the identity of confidential informants, information on
confidential police techniques, government classified information, or
information that would harm an ongoing investigation if disclosed. All other
evidence is usually made available to the defence.
Witness
Protection
The rights of the accused
usually include the right to confront their accusers in court. This means that
witnesses must appear in person and may be cross-examined in public. In
countries with a history of violent conflict, some witnesses may be afraid to
testify. In these circumstances they must be protected.
Different legal systems offer
considerably varying options for protecting witnesses. In countries with
limited resources or where the administration of justice is weak, witness
protection may be problematic.
Avoiding
Trial by Press
A delicate balance must be
struck between the public’s right to know and the right of the accused to a
fair trial. Most countries do not censor the press. Sensational media coverage
of a crime may make it difficult to conduct an impartial trial. In systems where
criminal liability is determined by a jury, its members may have to be sequestered
during a trial to shield it from influence.
Fair
Trial
Due process in most judicial
systems requires that serious crimes (felonies) be tried in open court before
an impartial judge. In some systems, there would also be an impartial jury
empaneled to consider the evidence. Defendants usually have the right to a
speedy and public trial conducted in accordance with established judicial
procedures. A public trial increases public confidence and protects the accused
(and the general public) from an abuse of justice.
For a criminal offence, the
standard for determining guilt is usually that it be proved to a very high
standard, such as “beyond a reasonable doubt.” (Civil cases generally use the
less strict standard of “preponderance of the evidence”.) The standard of proof
“beyond a reasonable doubt” is intended to protect the accused from wrongful
conviction.
Appropriate
Sentencing and Right of Appeal
The accused is usually sentenced
to a criminal penalty (such as fine or imprisonment) if found guilty. To be
fair, a sentence must fit the seriousness of the crime.
The right of appeal is part of
the checks and balances within the judicial system. This mechanism protects the
defendant from a biased or flawed judgment. The eligible grounds for appeal are
set out in each country’s legal framework and the procedures established by its
courts. An appeal can be heard only by a court authorized to review the
decisions of a lower court. In some countries, a higher electoral court makes
the final ruling on cases involving violations of election law. In other
countries, the final ruling is made by a constitutional or supreme court.
[1]
ICCPR, Arts. 2.3 (effective remedy and adjudication) and 14.1 (fair and
equitable adjudication); see UNHRC, General Comment Nos. 31 & 32.
[2]
ICCPR, Art. 25 (genuine periodic elections; see UNHRC, General Comment No. 25.
