Due process

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About

Due process is a set of legal principles and related human rights that guarantee fairness in the administration of justice. Due process is often associated with procedural guarantees at trial, but is not limited to adjudicative proceedings alone. It also includes rights of the accused during the pre-trial phases of arrest, detention, investigation, as well as the rights of the accused post-trial. Due process rights are typically conferred upon citizens by the laws of their state. While most states do offer their citizens some form of due process rights, the extent and nature of these rights varies considerably from country to country. Under international law, however, non-citizens are guaranteed basic due process rights should they be arrested in a foreign country. 

Basic Principles of Due Process

The right to be promptly informed of reasons for arrest and detention and of any charges against oneself

The right to be promptly informed of reasons for arrest and detention and of any charges against oneself, along with the principals of habeas corpus and reasonable cause, are designed to prevent arbitrary or unlawful arrest and detention. This principle has several consequences. First, it obliges the arrestor to immediately justify the legal basis for arrest and detention. At the same time, it informs the accused of the reasons for arrest, allowing the detainee to make informed decisions while in custody.

With regard to common law systems, this principle is found in the Sixth Amendment of the U.S. Constitution, which states, “In all criminal prosecutions, the accused shall…be informed of the nature and cause of the accusation.”^[1] Similarly, section 10 of the Canadian Charter of Rights and Freedoms states, “everyone has the right on arrest or detention…to be informed promptly of the reasons therefor.”^[2] In recent times, this right has also infiltrated civil law systems. Most notably, France, which has been heavily criticized for its practices regarding pre-trial detention, instituted a series of reforms in June of 2000, including the right of the accused to “be informed of the charges brought against him,” as defined in the Code of Criminal Procedure.^[3]

The right to appear before a judge

The right to appear before a judge is based on the writ of habeas corpus, a legal concept with origins in English Common law, predating the Magna Carta of 1215.^[4] Historically, habeas corpus referred to the right of the accused to appear before the court, generally for the purpose of a judicial inquiry into the legality of the detention. Article 39 of the Magna Carta solidified this legal principle, “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."^[5] The concept of habeas corpus was later incorporated into the legal systems of many British colonies, and is regarded as one of the founding principles of the U.S. Constitution, which declares that “the privilege of the write of habeas corpus shall not be suspended, unless when in the cases of rebellion or invasion the public safety require it.”^[6]

Although, historically, the writ of habeas corpus was unknown to civil law countries, its underlying principles, namely the prevention of unjust detention and judicial review of the legality of arrest, are a common part of civil law justice systems. The French Constitution, for instance, has incorporated the 1789 Declaration of the Rights of Man, which prohibits arbitrary detention and charges the judicial authority with upholding this principle.^[7] Similarly, Article 13 of the Italian Constitution states that, “no form of detention, inspection, or personal search is admissible, nor any other restrictions on personal freedom except by order from a judicial authority which states the reasons, and only in cases and manners provided for by law.” ^[8]

The right to be presumed innocent

The right to equality before the law and equal treatment by the law

The right to be tried by a competent, independent, and impartial tribunal established by law

The right to a public hearing

The right to be tried within a reasonable time

The right to defend oneself in person or through a lawyer of one’s own choice

The right to be present at one’s trial

The right to remain silent, or the right not to testify against one’s own interests

The right to call, examine, or have examined witnesses

The right to a reasoned judgement

The right to an appeal

The right to compensation in the event of miscarriage of justice

The principle of nullum crimen sine lege

The principle ofne bis in idem

The principle of reasonable cause

See also

References

1. ↑ http://constitutionus.com/
2. ↑ http://www.efc.ca/pages/law/charter/charter.text.html
3. ↑ http://legislationline.org/download/action/download/id/1674/file/848f4569851e2ea7eabfb2ffcd70.htm/preview
4. ↑ http://www.britannica.com.proxy.aup.fr/EBchecked/topic/250748/habeas-corpus
5. ↑ http://news.bbc.co.uk/2/hi/uk_news/magazine/4329839.stm
6. ↑ http://www.house.gov/house/Constitution/Constitution.html
7. ↑ http://www.loc.gov/law/help/habeas-corpus/france.php
8. ↑ http://www.loc.gov/law/help/habeas-corpus/italy.php

External links