A system of 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 convicted. The successful prosecution of criminals is an essential part of a society based on the rule of law. Prosecuting and sentencing offenders holds them accountable for their actions and serves as a deterrent for those who might be considering illegal activities.
In most systems, prosecution is done under the criminal law system. These laws regulate the conduct of individuals, defines crimes and punishments. In criminal cases, prosecution is done by the government as, in most systems, criminal acts are considered violations against the public order. Where a case is prosecuted is determined by which law was broken and whether it was a local, provincial or national law. (See Decision to Prosecute.) A case must also be brought before a court or judicial body that has the jurisdiction or authority to hear and decide on the case.
In criminal law, in most systems there are two types of offenses: felonies and misdemeanours. Misdemeanours are less serious offenses and can include such things as disorderly conduct, minor violations of codes of ethics and petty theft. Most misdemeanours are usually settled by a judge, without a trial or prosecution, and are punished with a fine or light jail sentence. Felonies, which are the more serious violations of law, usually require the formal proceedings of an arrest and trial.
Integrity in the administration of justice
It is very important in every system to have integrity in the administration of justice. This means laws are equitable and fair. Procedures follow the legal framework and protect the civil and political rights of those involved. Prosecutors, judges and juries follow the procedures and maintain the highest level of professional and ethical behaviour. And the accused are afforded their procedural rights.
The protection of the rights of the accused, and ensuring that due process has been followed, are essential integrity principles. Integrity in the administration of justice ensures that police and enforcement powers are not used for political or personal reasons, and that those accused of a crime are provided with a fair opportunity to present a defence.
In general, integrity in the prosecution and the administration of justice includes the following steps:
Lawful arrest and arraignment
According to the International Covenant on Civil and Political Rights:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.367
Arresting and charging a suspect with a crime in most systems requires probable cause-- something to link the person being accused with the crime. Unless the police catch a person in the act of committing a crime, such as stealing election materials, arrests are usually require an arrest warrant. An arrest warrant is a court order that authorizes the detainment of the suspect. It is usually based on a sworn statement by the investigator that shows the judge that there is probable cause that the suspect committed the crime. The arrest warrant process is parts of the checks and balance mechanisms as it provides judicial oversight over the police, and protects suspects from arbitrary police action.
In most legal systems, the accused are read their rights at the time of arrest--if not before-- and are asked if they understand these rights. (See Rights of the Accused). The accused are usually taken to a court within a reasonable amount of time to have the formal charges read against them as prepared by the prosecutor, at which time they normally enter a plea of guilty or not guilty. This process is called an arraignment.
A speedy arraignment can be another safeguard against arbitrary arrest, prolonged detention or unethical police tactics. An arraignment also lets the accused know what charges have been made against them so that they can prepare their defence or challenge the legality of their detention.
The judge, or court, usually determines the need for the accused to remain in custody until trial or if they could be released on bail or their own recognizance. Most legal systems are based on the assumption that a person is innocent until proven guilty, and that an accused person should not have to serve prison time until convicted of that crime. Unless it is a serious felony or violent offence, most defendants are allowed out on bail, with the deposit of funds serving as a guarantee that the accused will appear in court for the trial. This gives them the freedom to prepare their defence and continue their work and family life.
Some systems have a separate safeguard mechanism that enables the suspect or his family to challenge the lawfulness of an arrest or detention. One of these mechanisms is the writ of habeas corpus, which requires law enforcement to bring the prisoner before a judge and show the probable cause for their detention.368
Pretrial disclosure
To help 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 a right to have access to all evidence collected, whether or not it will be used by the prosecution.
Information that can be kept from the defence in most systems usually includes information on the identity of confidential police informants, information that could affect an ongoing police investigation, information on confidential police techniques (such as a type of monitoring device), and government classified information. All other evidence is usually disclosed.
Witness protection
The rights of the accused usually include the right to confront their accusers in court. This means that the witnesses show up in person and are available for cross examination. This can be a very public procedure. In countries with a history of violent conflict, or in countries with a serious problem such as organized crime, some witnesses may be afraid to testify. They may be afraid of assassination, retribution or other violent acts against themselves or their families.
Witnesses in these conditions need protection. The ability of the different legal systems to protect a witness varies considerably. In Canada, for instance, witness identity may be protected in some cases.369 In the U.S., the witness protection system includes relocation of witnesses and identity changes. Other systems may provide witnesses with armed guards during the trial. In countries with fewer resources, or a weak administration of justice system, witness protection may be difficult.
Avoiding trial by press
There is a delicate balance between the public's right to know and the rights of the accused to a fair trial. Most nations do not censor the press, leaving them free to speculate on the merits of a case, the evidence, and the guilt or innocence of the accused. Sensational media coverage of a crime before a trial can make it difficult for the accused to have an impartial hearing. Jury members may have already decided guilt or innocence based on the press coverage. Active press reporting during the trial can also affect a jury's deliberations- one of the reasons some systems sequester juries during a trial.
Fair trial
Due process in most judicial systems requires that serious crimes (felonies) are tried in an open court before an impartial judge with jurisdiction over the case. Depending on the legal system, it could include an impartial jury which determines the guilt or innocence of the accused. Defendants are usually given the right to a speedy, impartial and public trial conducted in accordance with established procedures of law. Trials are usually held in the location where the crime was committed, so that the jury understands the context of the crime. But trial venue can sometimes be changed if it is impossible for the defendant to receive a fair trial because an impartial jury cannot be found.
Most systems have an open system where the trial can be attended by the public and press. A public trial is seen to promote public confidence, and protects both the accused and the general public against a secret and abusive criminal justice system.
Most legal systems require a speedy trial to protect the defendant against the uncertainties of a criminal prosecution and to make sure that the testimony of the witnesses is still available. Witnesses can move or their recollections can fade. Delays may be required, but these should not be prejudicial to the defendant.
Generally, the prosecution and the defence each have a right to present their case in the trial for examination by the judge and jury. A fair trial gives the defence the right to confront and cross examine prosecution witnesses. This is a safeguard for the defendant against conviction based on faceless informers. It gives the defendants the ability to hear the testimony against them, to see the evidence submitted against them and to fully challenge the witness by cross examination through their attorney. The defence also usually has the right to call witnesses in their defence and to compel their attendance in court.
The purpose of a trial is to determine whether the accused is innocent or guilty of the crime. The standard for determining guilt for a criminal offense is usually 'beyond a reasonable doubt.' The prosecution must persuade the judge or jury that the evidence provided proves guilt beyond a reasonable doubt. (Civil cases generally use a lesser 'preponderance of evidence' standards. For more on this see Civil Litigation). The beyond a reasonable doubt standard is to safeguard the accused against a dubious conviction and to allow the judge and jury to be as certain of the decision as humanly possible.
Appropriate sentencing
The accused is usually sentenced upon conviction. To be fair, the sentence matches the severity of the crime. Misdemeanours generally result in: a warning; a court order preventing such things as the holding of a demonstration or electoral advertising; disqualification of a candidate; or cancelling the registration of a party. Fines can also be levied or the restitution of damages required.
Serious crimes can result in imprisonment. According to the offense, the convicted felon is generally kept in government custody for a set period of time. Electoral crimes can also result in the loss of voting rights for a specified period of time.
For more on these issues see Sanctions for Specific Electoral Offences.
Appeal
The right to an appeal is part of the checks and balances within the judicial system. This mechanism protects the defendant against a biassed or flawed prosecution, and gives the losing party a last chance to argue errors of law or procedure. The grounds for appeal are found in the legal framework of each country and in the procedures established by their courts. Appeals can only be heard by a court authorized to review the decisions of inferior courts. In some countries, this would be a supreme electoral court which has the final appeal ruling on cases involving infractions of the election law. In other countries, this could be a constitutional counsel or a supreme court.
