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.