The rights of victims in criminal justice proceedings for serious human rights violations /
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| Author / Creator: | Ochoa, Juan Carlos. |
|---|---|
| Imprint: | Leiden, The Netherlands : Martinus Nijhoff Publishers, 2013. ©2013 |
| Description: | xx, 313 pages ; 25 cm. |
| Language: | English |
| Series: | Graduate institute of international and development studies ; volume 12 Graduate Institute of International and Development Studies (Series) ; v. 12. |
| Subject: | |
| Format: | E-Resource Print Book |
| URL for this record: | http://pi.lib.uchicago.edu/1001/cat/bib/9042783 |
Table of Contents:
- Acknowledgments
- Note on the Method of Citation
- List of Abbreviations
- Introduction
- I. Addressing Some Critical Conceptual and Methodological Issues
- A. Defining the Rights of Victims in Criminal Procedures Analysed in this work
- B. Delineating my Approach to This Matter
- C. Identifying and Discussing the Legal Frameworks Used in This Work
- II. The State of Customary International Law on This Subject
- III. Why the Current State of Customary International Law on This Matter is Inadequate
- A. Legal Bases and Rationales for Victim Access to and Participation in Criminal Procedures
- i. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters
- ii. Internationally Recognised Human Rights and Principles
- iii. Other Rationales
- B. Observance of the Principles that Inform the Enforcement of Criminal Law in Democratic States
- C. Other Reasons Why the Current State of Customary International Law on This Subject is Inadequate
- D. Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Serious Human Rights Violations
- IV. Assessing the Significance of Victim Access to and Participation in Criminal Procedures
- Chapter I. Conceptual Framework
- I. The Concept of Serious Human Rights Violations
- II. The Concept of Victim
- III. The Legal Status of the Decisions of Human Rights Treaty Monitoring Bodies in Individual Cases
- A. Practice of the UN Human Rights Committee
- B. Approaches by Scholars
- C. Approach Adopted in This Work
- Chapter II. Procedural Obligations of States in the Field of Criminal Justice When Faced with Serious Human Rights Violations
- I. Features of States' Procedural Obligations When Faced with Serious Human Rights Violations Generally
- A. Legal Sources and Rationales
- i. Case Law of United Nations and Regional Human Rights Treaty Monitoring Bodies
- B. The Nature of States' Obligation to Investigate
- C. Content of States' Procedural Obligations
- D. The Objectives of Criminal Procedures for Serious Human Rights Violations
- E. Scope Ratione Personae
- i. United Nations Human Rights Instruments and Bodies
- ii. Case Law of Regional Human Rights Treaty Monitoring Bodies
- iii. Conclusion
- F. Conclusions of this Section
- II. States' Procedural Obligations in Situations of Mass Serious Human Rights Violations
- A. The State of Customary International Law
- B. Assessing States' Compliance with Their Obligations under General Human Rights Treaties and Certain Subject Specific International Conventions
- i. Why Balance the Goal of Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations with Other Objectives of Societies in Transition?
- ii. Conditions to be Met in Order that a State Can Refrain from Prosecuting Those Responsible for International Crimes and Serious Human Rights Violations
- iii. Legal Grounds that a State May Invoke for Adopting a Conditional Amnesty Scheme
- iv. Requirements that Prosecutions Should Fulfil
- v. The Need for Non-Prosecution Measures to Supplement Prosecutions
- C. Conclusions of this Section
- III. General Conclusions
- Chapter III. The Status Under International Law of the Rights of Access to and Participation in Criminal Proceedings Before Domestic Courts for Victims of Serious Human Rights Violations
- I. The Approach of United Nations Instruments and Monitoring Bodies
- A. The Approach of United Nations Treaties and Their Monitoring Bodies
- i. The International Covenant on Civil and Political Rights
- ii. The UN Convention against Torture
- iii. International Instruments Proscribing Forced Disappearance
- iv. Other International Conventions
- B. United Nations Instruments Other Than Treaties
- i. The UN Declaration for Victims of Crime
- ii. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims
- iii. The Set of Principles on Combating Impunity
- C. Conclusions
- II. Case Law of Regional Human Rights Treaty Monitoring Bodies
- A. The Inter-American System for the Protection of Human Rights
- i. Victims' Right to Resort to the Administration of Justice to Obtain an Investigation and, if Warranted, that Those Responsible are Prosecuted and Punished
- ii. Victims' Right to Participate in Criminal Proceedings
- iii. Discussion
- iv. Conclusions
- B. The European System for the Protection of Human Rights
- i. Victims' Rights in Criminal Proceedings Recognised by the ECtHR When Assessing Compliance with the State's Procedural Obligations When Faced with Serious Human Rights Violations
- ii. Do Victims of Serious Human Rights Violations Enjoy the Right to a Fair Hearing in Criminal Proceedings?
- iii. The Implementation of States' Procedural Obligations When Faced with Serious Human Rights Violations
- iv. Conclusions
- C. The African System for the Protection of Human Rights
- i. The Right to an Effective Remedy
- ii. The Right to a Fair Hearing
- iii. Conclusions
- III. The Divide between the Common Law and the Civil Law Traditions
- A. The Premises and Features of the Common Law Tradition
- B. The Premises and Features of the Civil Law Tradition
- C. Features of Current Approaches in Common Law and Civil Law Jurisdictions
- D. Conclusions
- IV. General Conclusions
- Chapter IV. Reappraising Access to and Participation In Criminal Proceedings for Victims of Serious Human Rights Violations
- I. The Legal Bases and Rationales for Access to and Participation in Criminal Procedures for Victims of Serious Human Rights Violations
- A. The Approach of International Human Rights Treaty Monitoring Bodies to Several Closely Related Matters
- B. The Right to an Effective Remedy
- C. The Right to a Fair Hearing
- D. Contribution to Effective Human Rights Protection and to Reaffirmation of the Principle of the Rule of Law
- II. Other Rationales for Victim Access to and Participation in Criminal Procedures
- A. Recognising Several Legitimate interests of Victims in the Criminal Procedures for Serious Human Rights Violations
- i. Delimiting the Legitimate Interests of Victims in Criminal Procedures for Serious Human Rights Violations
- B. Contribution to Victim Perception of the Fairness and Legitimacy of Criminal Procedures
- III. Addressing the Arguments Against Victim Access to and Participation in Criminal Procedures
- A. Observance of the Public Interest Criteria that Inform Decision-Making in Criminal Procedures in Democratic States
- B. Victim Access to and Participation in Criminal Procedures Reaffirm the Objectives of Criminal Tribunals
- C. Victim Participatory Rights in Criminal Procedures Can be Reconciled with a Criminal Justice System Based on Retribution
- D. Victim Participation in Criminal Procedures is Consistent with the Presumption of Innocence of the Defendant
- E. Psychological Effects of Victim Access to and Participation in Criminal Procedures Pursuant to the Rights Identified in this Monograph
- IV. Implementing Victim Access to and Participation in Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations
- A. The Investigation Phase
- B. The Trial Phase
- i. The Right to be Heard
- ii. The Rights to Offer, Examine and Challenge Evidence at the Trial
- V. Conclusions
- Chapter V. Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity
- I. Victims in the Proceedings before International and Hybrid Criminal Tribunals
- A. Victims in the Proceedings before the ad hoc International Criminal Tribunals
- B. Victims in the Proceedings before the International Criminal Court
- C. Victims in the Proceedings before the Hybrid Criminal Tribunals
- i. The Hybrid Courts in Kosovo
- ii. The Special Panels in East Timor
- iii. The Special Court of Sierra Leone
- iv. The Special Chamber in the State Court of Bosnia and Herzegovina
- v. The Extraordinary Chambers in the Courts of Cambodia
- vi. The Special Tribunal for Lebanon
- D. Conclusions
- II. Why Allow Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity?
- III. Addressing the Arguments against Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity
- IV. Implementing Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity
- A. Should Victim Participation in Criminal Proceedings Carried out in Situations of Mass Atrocity Take Place Only through a Legal Representative?
- B. Content of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity
- i. Victim Rights at the Investigation Phase
- ii. Victim Rights at the Trial Phase
- iii. Steps Needed for the Recognition of these Victim Rights
- C. The Scope of Victims' Legitimate Interests in Criminal Proceedings Conducted in Situations of Mass Atrocity
- D. Need for Additional Measures for the Effective Implementation of Victim Access to and Participation in Criminal Proceedings Conducted in Situations of Mass Atrocity
- V. Conclusions
- Chapter VI. General Conclusions
- I. The Main Findings and Submissions of This Work
- A. The State of Customary International Law on This Matter
- B. Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations From the International Law and Normative Perspectives
- C. Implementing Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations
- i. Criminal Procedures Conducted in Situations of Isolated Serious Human Rights Violations
- ii. Criminal Procedures Conducted in Situations of Mass Atrocity
- D. The Significance of Victim Access to and Participation in Criminal Procedures for Serious Human Rights Violations
- II. The Implications of the Findings of this Work
- Bibliography
- Index
