Human Rights Framework

Abstract

This chapter sets out the human rights framework with respect to the question of how to address pre-trial procedural violations. Several rights enshrined in the comprehensive human rights treaties are relevant to this question, in particular, the right to a fair trial and the right to an effective remedy; both are examined in this chapter. In addition, the human rights law with respect to inter-state cooperation in criminal matters (where procedural violations have been committed in that context, that is) is considered. In the examination of the right to a fair trial, consideration is given to the question of when unlawful conduct on the part of the police in the course of the investigation will impact on the fairness of the proceedings, and to the extent to which the determination of whether there has been a violation of the right depends on the particular circumstances of the case and whether public interest considerations may inform this determination. Finally, in one of the domestic jurisdictions examined in this book another aspect of human rights law has entered the discussion on how to address pre-trial procedural violations: the positive obligations arising under the ECHR. The argument is that certain responses to such procedural violations may be inconsistent with the positive obligations arising from certain substantive rights protected by the ECHR, because they prevent the court from punishing effectively the person responsible. The question of whether a duty to punish can be read into such positive obligations is therefore also addressed in this chapter.