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 two types of offences: felonies and misdemeanours. Misdemeanours are lesser offences such as disorderly conduct, minor violations of codes of ethics and petty theft. Most cases of misdemeanour usually involve an appearance before a judge rather than a trial, with the punishment being a fine or a light jail sentence. Felonies are more serious offences, and usually involve arrest and trial.
Integrity in the Administration of Justice
Integrity in the administration of justice is very important for the entire electoral system. Integrity means that laws are equitable and fair. Procedures follow legal rules, and protect civil and political rights. Prosecutors, judges and juries must follow the procedures and maintain the highest level of professional and ethical behaviour. Accused persons must be afforded their procedural rights.
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.
To safeguard integrity in prosecutions and the administration of justice, a number of conditions must be met.
Lawful Arrest and Arraignment
For a suspect to be arrested and charged, there must usually be evidence linking that individual to the offence. Unless the police catch someone in the act, an arrest generally requires an arrest warrant.
In most legal systems, arresting officers read accused persons their rights and ask whether they understand these rights. Within a reasonable time the accused are usually taken to a court to be charged, and may then 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 court 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 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 provided 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 Canada, for instance, witness identity may be protected in some cases. In the United States, the witness protection system may include relocation of witnesses and identity changes. Other systems may provide witnesses with armed bodyguards during the trial. In countries with limited resources or where the administration of justice is weak, witness protection may be more 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. Some systems sequester the jury 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 with jurisdiction in the case. Depending on the system, there may also be an impartial jury. 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 abusive justice system.
For a criminal offence, the standard for determining guilt is usually that it be proved “beyond a reasonable doubt.” (Civil cases generally use the less strict standard of “preponderance of 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 upon being found guilty. To be fair, the 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 council or a supreme court.
