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Human Rights Manual for Prosecutors HUMAN RIGHTS MANUAL FOR PROSECUTORS international association of prosecutors HUMAN RIGHTS MANUAL FOR PROSECUTORS Egbert Myjer Barry Hancock, Nicolas Cowdery (Eds.) international association of prosecutors Human Rights Manual for Prosecutors. Egbert Myjer, Barry Hancock, Nicolas Cowdery (Eds.). Published by the International Association of Prosecutors in cooperation with aolf Legal Publishers (WLP), 2009. ISBN: 978-90-5850-459-3 1st edition (2003) 2nd completely revised edition (2009) International Association of Prosecutors Hartogstraat 13 2514 EP The Hague The Netherlands Tel. +31 70 3630345 +31 70 3630352 Fax. +31 70 3630367 e-mail: sg@ iap.nl.com [email protected] Publisher: René & Willem-Jan van der Wolf Published by: aolf Legal Publishers (WLP) P.O.Box 31051 6503 CB Nijmegen The Netherlands Tel: +31 24-3551904 Fax: + 31 24-3554827; E-Mail: [email protected] Http://www.wolfpublishers.com Disclaimer: Whilst the authors, editors and publisher have tried to ensure the accuracy of this publication, the publisher, authors and editors cannot accept responsibility for any errors, omissions, misstatements, or mistakes and accept no responsibility for the use of the information presented in this work. ©IAP/ WLP 2009. CONTENTS foreword i introduction iii International instruments cited in the present manual v Cases of the European Court of Human Rights ix Abbreviations xi ‘human rights on duty’: an introduction 1 international human rights law 5 international standards for the independence of the judiciary and the legal profession 9 human rights and the right to life 17 human rights and the investigation of offences 39 human rights during arrest and pre-trial detention 71 human rights and pre-trial procedures 97 human rights and trial procedures 123 human rights and sentencing 145 human rights and the treatment of prisoners 153 administration of criminal justice under states of emergency 165 human rights and the fight against terrorism 173 human rights and juvenile justice 185 discrimination in the justice system 203 equality for women in the administration of justice 215 appendices - guidelines on the role of prosecutors 219 - recommendation rec(2000) 19 of the committee of ministers to member states on the role of public prosecution in the criminal justice system 225 - standards of professional responsibility and statement of the essential duties and rights of prosecutors 235 - useful internet addresses 240 FOREWORD The U.N. Vienna Declaration of 1993 declared that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and should be promoted and implemented in a fair and equitable manner. The prime responsibility for doing so falls upon States. Prosecutors are agents of States. This Manual advances the objectives of the U.N. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms of 1998. The Declaration requires States to create the necessary conditions and provide legal guarantees to ensure that all persons under their jurisdictions are able to enjoy those rights and freedoms in practice. The Manual will assist prosecutors, especially, to advance the achievement of those ends. This Manual is a practical aid. The principles to be applied by prosecutors in their daily work are to be found in international instruments, regional instruments and in domestic law. The Manual introduces practitioners to issues and principles of universal and regional application – practitioners in individual jurisdictions may then marry the applicable principles to provisions of the domestic laws of their own jurisdictions and thus obtain a complete code of conduct for any part of the world and for any official procedure. The IAP pays tribute to Professor Myjer and his assistants for the production of the Manual. It is a major work of great significance and value in the field and should find a place on the shelf (or in the electronic library) of every prosecutor. This second edition includes updates of international law and ‘soft law’ and recent jurisprudence of the European Court of Human Rights where Professor Myjer is now a judge. Since the publication of the first edition of the Manual in 2003 it has become a standard reference book for prosecutors and has been translated into six i human rights manual for prosecutors languages. It remains a significant step for the International Association of Prosecutors in its endeavours to promote the effective, fair, impartial and efficient prosecution of criminal offences and to assist prosecutors internationally in the fight against crime. François Falletti President International Association of Prosecutors ii INTRODUCTION TO THE 2ND EDITION Following the adoption of the IAP Standards (1999), the theme of the 5th IAP Annual Conference in Cape Town (2000) was Human Rights and the Prosecutor. One of the outcomes of the conference was the establishment of the IAP Human Rights Forum. The first project of the Forum was the compilation of an IAP Human Rights Manual specifically for prosecutors. All main international texts and principles, at both the UN-level and regional levels, which might be of interest to prosecutors all over the world, were to be compiled and discussed in the Manual. Accordingly, in this IAP Human Rights Manual for Prosecutors the prosecutor will find a compilation of international texts on human rights, at both the UN and regional levels, which may be relevant for his/her daily practice. The Manual also contains excerpts from relevant non-binding documents (so-called “soft” international law) which might be of use and interest to prosecutors, and some helpful commentaries, including authoritative general comments on the ICCPR by the Human Rights Committee. Since the Human Rights Manual for Prosecutors (“the Manual”) appeared in 2003, the manual has also been translated into the French, Russian, Ukrainian, Arabic and Turkish languages. Parts of it have also been translated into Chinese. The IAP has asked us, as we approach the fifth anniversary, to update the first edition. We have kept intact the original text, correcting textual errors and omitting superfluous duplication. The update mainly concerns relevant international texts which have appeared since first publication. To the European practice we have added some new case-law from the European Court of Human Rights. The Court is the oldest and busiest international human rights tribunal. Up to the end of 2007 it had delivered 9031 judgments involving the 47 Contracting European States. In a future update of the manual no doubt attention will also be paid to the growing case-law of the Inter-American Court of Human Rights which up to the end of 2007 had delivered 174 judgments. Also by that time it is iii human rights manual for prosecutors anticipated that the African Court on Human and People’s Rights will have started to deliver its decisions and judgments. Because of the important role of prosecutors in the fight against terrorism, some ‘soft law’ has been added on human rights and the fight against terrorism. By making only minor changes we have ensured that the Manual still focuses mainly on the ethical and procedural aspects of the profession of the prosecutor. We resisted the temptation to add chapters relating to other fundamental rights with which the prosecutor may be faced during his or her professional work, such as freedom of thought, conscience and religion, freedom of expression and freedom of assembly and association. Neither did we pay attention to the role of the public prosecutor in the protection of human rights outside the criminal law field. (See the proceedings of the Conference of Prosecutors General of Europe, held in Saint Petersburg July 2008, and the report by Andras Sz. Varga, The role of the public prosecution service outside the field of criminal justice, to be consulted via www.coe.int/t/dg1/legalcooperation/ccpe/conferences/2008/ ) The appendices contain the updated version of the IAP Standards of professional responsibility and statement of the essential duties and rights of prosecutors. We have also included the Standards of Conduct and Training, which are laid down in the Draft Regulation of the Office of the Prosecutor of the International Criminal Court. Although the latter are directed only to the international prosecutor, they may be a valuable source of inspiration for national prosecution services. We are no longer a member of the Executive Committee, General Counsel or President of the IAP respectively. However, we have enjoyed being able to show our commitment to the goals of the IAP by preparing this second edition. The texts in the first edition were compiled by Marnix Alink, at the time a law student at the Amsterdam Free University. Egbert Myjer, Judge at the European Court of Human Rights (elected in respect of The Netherlands). Barry Hancock, Special Adviser to the IAP. Nicholas Cowdery, Director of Public Prosecutions, New South Wales, Australia. iv INTERNATIONAL INSTRUMENTS CITED IN THE PRESENT MANUAL UN-LEVEL - Basic Principles on the Independence of the Judiciary (Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders; Milan, 6 September 1985) - Basic Principles for the Treatment of Prisoners (General Assembly resolution 45/111 of 14 December 1990) - Basic Principles on the Role of Lawyers (Eight Congress report, chap. I, sect. B.3 of 7 September 1990) - Basic Principles on the
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