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  This module is a resource for lecturers  

 

Topic two - The scope of United Nations standards and norms on crime prevention and criminal justice

 

International human rights law provides the overarching framework for the international legal provisions and standards and norms that pertain to law, policy and practice in the field of crime prevention and criminal justice. The development of international consensus on universal human rights, and the widespread adoption of international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) (1966) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965), reflect a shared commitment to ensuring that human rights are upheld in all contexts, including for individuals in contact, or indeed, in conflict, with the law. This binding legal framework, and the normative framework discussed below, oblige States to respect, protect and fulfil a wide range of fundamental human rights, including the right to life, right to liberty and security, freedom from torture, and the right to non-discrimination.

The rights of individuals in conflict with the law build upon the fundamental human rights enshrined in core international human rights treaties, to which the concept of equal human dignity is central. The inherent dignity and value of each human is enshrined in international instruments, including the United Nations International Covenant on Civil and Political Rights (ICCPR) (1966), the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), and the United Nations Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (CAT) (1984) and the Universal Declaration of Human Rights (UDHR) (1948). For individuals who may face particular vulnerability, or discrimination on the grounds of disability, age, sex/gender, race, or migration status, the following core human rights conventions affirm the importance of equal human dignity: the Convention on the Rights of the Child (CRC) (1989), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979); the Convention on the Elimination of Racial Discrimination (ICERD) (1965); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), and the Convention on the Rights of Persons with Disabilities (CRPD) (2006).

Together, these comprehensive human rights instruments enumerate safeguards necessary to uphold the inherent dignity of each human, and the right of each person to freedom from cruel, inhuman and degrading treatment.

The previous topic explored the binding international legal framework, and monitoring mechanisms, relevant to upholding human rights in the context of criminal justice. The present topic is concerned with the internationally agreed normative framework that guides state practice to ensure that individuals in conflict with the law are treated in a manner consistent with their safety, human dignity and, for convicted offenders, their prospects for reintegration.

The UN standards and norms on criminal justice and crime prevention target a range of longstanding challenges, such as overcrowded prisons, terrorism, racism and sexism (including structural, institutional, indirect and direct discrimination in the criminal justice system), and the victimization, as well as the treatment of other groups with special rights and/or needs during their contact with the criminal justice system (such as children, people with disabilities, elderly people, victims, and people with special medical conditions, i.e. people with mental illness, people struggling with drug addictions, people living with HIV, etc.). The UN standards and norms in criminal justice and crime prevention provide a set of positive measures both by accentuating law enforcement and justice professionals’ obligations to effectively investigate and prosecute individuals who engage in criminal activity, while also setting forth minimum standards and normative guidance about the treatment (and the monitoring of such treatment) of all persons in contact with criminal justice institutions.

Collectively, the standards and norms encourage Member States to establish strong statutory protections, transparent and accountable procedures, and suitably trained professionals to ensure that persons accused of crime receive treatment that is consistent with their human dignity. In addition to the emphasis on crime prevention, such standards cover specificities relating to fair trial procedures, humane custodial arrangements, and supports to promote rehabilitation and reintegration.

The four philosophical pillars of the standards and norms in the field of criminal justice and crime prevention are humanity, fairness, efficiency and accountability. The first pertains to commitments to the broader human rights framework, reiterating the premise that we hold human rights by virtue of our humanity – a principled stance that is both affirming and unifying. As Nobel prize laureate Amaryta Sen argues, “Proclamations of human rights . . . are really strong ethical pronouncements as to what should be done.” (Sen, 2010, p. 357). But human rights are more than legislative or policy declarations. They have an aspirational role and, in order for them to be justiciable, the duty bearer must be held to account. Because, as Sen continues, “Non-realization does not, in itself, make a claimed right a non-right. Rather it motivates further social action.” (Sen, 2010, p. 385). He elaborates as follows:

It is perhaps important to emphasize that not only are there several ways of safeguarding and promoting human rights other than legislation, these different routes have considerable complementarity; for example, for effective enforcement of new human rights laws, public monitoring and pressure can make a considerable difference. (Sen, 2010, p. 366)

This brings attention to the two interrelated temporal dimensions of preventive and responsive normative framework, which is also twofold: setting standards (based on international consensus) and setting up meaningful monitoring mechanisms (as discussed in Topic 1).

From humanity stems the second principle of fairness, which is one of the ways in which human dignity surfaces. Fairness not only includes a broad set of norms for procedural justice, but also the requirement of the recognition and protection of equal dignity, and the complex realization of the principle of equal treatment. The prohibition of discrimination involves a subsequent policy obligation to mainstream core vulnerabilities and to adopt a holistic approach to discover structural/institutional discrimination.

The third principle of the standards and norms in the field of criminal justice and crime prevention is efficiency, and underlines that human rights are not obstacles to a well-functioning criminal justice and crime prevention system. On the contrary, it is fundamental for stable societies to be governed by the rule of law whereby transactional justice proceeds according to established criteria that cleave to the fundamental principles of equality before the law, the right to a fair trial, and justice for victims. Striving for efficiency goes beyond making declarative normative statements. For this reason, the standards and norms often reach down to the technical details to provide a workable basis for legislative and policy reform.

The fourth principle refers to transparency and accountability of law enforcement and justice. It follows from the previous principles that since the State and state actors wield considerable power, there is a need for adequate safeguards and monitoring to ensure that the exercise of such powers adheres to the rule of law and preserves equal human dignity. This fourth principle is explored in further detail below, with respect to the minimum standards and rules that govern the conduct of professionals in the criminal justice sector.

 

The rule of law and the role of minimum standards for key functions within the criminal justice system

 

Prison conditions

The rate of imprisonment is increasing in many countries worldwide. In 2018, the World Prison Brief reported that "more than 10.74 million people are held in penal institutions throughout the world, either as pre-trial detainees/remand prisoners or having been convicted and sentenced" (2018, p. 2) The growth of the world prison population has resulted in the acute problem of overcrowding in many prison institutions, one of the major factors contributing to poor prison conditions and inhumane treatment of prisoners around the world (Penal Reform International, 2018).

The international legal framework reflects the global understanding that imprisonment has the potential to impose hardship and give rise to human rights abuses. The ICCPR requires, for example, that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (1966, Article 10 (1)). The same instrument prohibits torture or cruel, inhuman or degrading treatment or punishment (1966, Article 7) and, in addition to a range of due process rights, such as the presumption of innocence (1966, Article 14 (2)), and the right to be informed about charges without delay (1966, Article 9 (2); Article 14 (3)), the ICCPR also requires that prisoner rehabilitation be the essential aim of the penitentiary system (1966, Article 3 (3)). In recognition of the risks that individuals enmeshed in the criminal justice system be subjected to violence, the CAT requires that “education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment” (1984, Article 10 (1)).

Building on the provisions of this binding legal framework, the standards and norms on crime prevention and criminal justice play and important role in setting minimum standards with respect to conditions of detention and the treatment of prisoners

There are several associated tools developed by UNODC to provide professionals with more extensive guidance on prison management practices that meet internationally agreed standards. These include the following handbooks: Handbook for Prison Leaders (2010), Handbook on Prisoner File Management (2008), Handbook on the Management of High-Risk Prisoners (2016), Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in Prisons (2016), and the Handbook on Anti-Corruption Measures in Prisons (2017). Furthermore, standards and norms have been agreed, internationally, to recognise and safeguard the needs and rights of prisoners from specific groups and this is reflected in the Handbook on Prisoners With Special Needs (2009), Handbook on Women and Imprisonment (2014). Furthermore, under the Global Programme for the Implementation of the Doha Declaration, UNODC has undertaken considerable work on prisoner rehabilitation, including education, vocational training and work programmes.

Example: Women and imprisonment

The UNODC Handbook on Women and Imprisonment (2014) provides guidance on the components of a gender-sensitive approach to prison management, taking into account issues that contribute to women’s criminal justice involvement, and the special needs of women while in prison. The practical strategies and recommendations presented in the Handbook are guided by the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (The Bangkok Rules) (2010). Developed for criminal justice practitioners, the Handbook elaborates guidance across the key topics of:

  • The special needs of female prisoners
  • Management of women’s prisons
  • Reducing the female prison population by reforming legislation and practice
  • Research, planning, evaluation and public awareness-raising

For example, the Handbook notes the structural conditions that often lead women into conflict with the law, and the additional vulnerability that women face during their criminal justice involvement:

many women in the criminal justice system are from poor and marginalized sectors of communities or from societies where the education of women is not the norm, due to role models imposed on the female gender, based on religion, custom or stereotypical perceptions of women’s position in society. Thus, a large majority of women who are detained not only do not have the economic means to hire a lawyer, but they are very often illiterate and unaware of their legal rights. This places them in a particularly vulnerable position, at risk of signing statements that have serious legal implications and of being open to coercion. At the very least, the lack of legal representation can lead to immense delays in the criminal justice process, and fewer chances of defendants being considered for bail, for example, taking into account women’s caring responsibilities for their children and others” (UNODC, 2014, p. 8)

In this regard, the Handbook clarifies that the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2013) contain specific provisions relevant to the implementation of the right of women to access legal aid:

“including: (a) Introducing an active policy of incorporating a gender perspective into all policies, laws, procedures, programmes and practices relating to legal aid to ensure gender equality and equal and fair access to justice; (b) Taking active steps to ensure that, where possible, female lawyers are available to represent female defendants, accused and victims; (c) Providing legal aid, advice and court support services in all legal proceedings to female victims of violence in order to ensure access to justice and avoid secondary victimization and other such services, which may include the translation of legal documents where requested or required” (UNODC, 2013, Guideline 9).

There are also a number of standards and norms dedicated to specific procedures in the criminal justice system, such as those focusing on torture and other cruel, inhuman or degrading treatment or punishment (for example the Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment (1982) or the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2000)), and capital punishment (such as a specific General Assembly resolution on ‘Capital punishment’ (2015) or the Economic and Social Council resolutions on the ‘Safeguards guaranteeing protection of the rights of those facing the death penalty’ (1984) and ‘Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions' (1989)).

Alternatives to imprisonment

In addition to the standards and norms on the treatment of prisoners, authoritative guidelines to promote alternatives to imprisonment aim to see fewer individuals placed in custodial facilities in the first place. A range of standards and norms elaborate safeguards to assist Member States in implementing non-custodial options that do genuinely reduce prison populations, without the unintended consequences of net-widening or unnecessary criminal justice involvement. These include: the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (1990); and the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2002). Practical guidance to assist criminal justice practitioners in implementing these standards and norms is elaborated in a range of tools, developed by UNODC, including: Handbook on Strategies to Reduce Overcrowding in Prisons (2013), the Handbook of basic principles and promising practices on Alternatives to Imprisonment (2007), as well as the Handbook on Restorative Justice Programmes (2006).

For further materials on issues related to imprisonment, and non-custodial measures, see Module 6 on Prison Reform; Module 7 on Alternatives to Imprisonment; and Module 8 on Restorative Justice of the E4J University Module Series on Crime Prevention and Criminal Justice.

Equal access to justice and recognizing the rights of specific groups

Equal access to justice is predicated on the human rights principles of non-discrimination and equality before the law. The formality and gravity of criminal justice involvement, for victims, witnesses and accused or recognised offenders, warrants that specific provisions protect the rights of persons from groups that may otherwise face discrimination or barriers to justice. There are several standards and norms dedicated to specifically addressing the situation of women and children in the justice process. Important among these are: The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) (2010); the United Nations Model Strategies and Practical Measures on the Elimination of Violence Against Children in the Field of Crime Prevention and Criminal justice (2014); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985); the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990); the Guidelines for Action on Children in the Criminal Justice System (1997); and the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005).

There are several additional tools and materials prepared by UNODC and relevant partners, to provide Member States with practical guidance about establishing specialized child justice systems that are protective of children’s rights. These tools include: Justice in Matters Involving Children in Conflict with the Law: Model Law on Juvenile Justice and Related Commentary (2013); the UNODC/UNICEF Manual for the Measurement of juvenile justice indicators (2006); the Checklist and Introductory Booklet on the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the field of crime prevention and criminal justice (2015); and the INSPIRE Handbook: Action for implementing the seven strategies for ending violence against children (2018). For further materials on matters involving justice for children, see Modules 12 and 13 on Violence against Children and Justice for Children of the E4J University Module Series on Crime Prevention and Criminal Justice.

A further set of standards and norms focus on access to legal aid (in all stages of the criminal justice process), an essential element of a fair, humane, trustworthy and efficient criminal justice system that is based on the rule of law, and what may also be a tool to reduce unnecessary incarceration. The relevant standards include: the Basic Principles on the Role of Lawyers (1990); the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2013). The practical tools include the UNODC Model Law on Legal Aid in Criminal Justice Systems with Commentaries (2017); and the UNODC/UNDP publication on Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners (2014). For further materials on this topic, see Module 3 on Access to Legal Aid in Criminal Proceedings of the E4J University Module Series on Crime Prevention and Criminal Justice.

A special set of standards and norms focus on justice for victims of crime (who have traditionally been neglected in criminal justice proceedings that prioritize bringing perpetrators to justice). The most important documents are the General Assembly’s Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) and subsequent Economic and Social Council implementation resolutions complemented by the standards relating to child victims, in particular the UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005). UNODC has developed a number of technical assistance tools based on those standards, including the Handbook on Justice for Victims on the use and application of the Declaration of Basic Principles of Justice for Victims and Abuse of Power (1999); and the Handbook, child-friendly version and Model Law on this topic Justice in Matters Involving Child Victims and Witnesses of Crime: Model Law and Related Commentary (2005). For additional materials on this topic, see Module 11 on Justice for Victims of the E4J University Module Series on Crime Prevention and Criminal Justice.

Good governance, and fair, humane, and accountable justice institutions

The concept of rule of law is central to this Module and to the scope and focus of the UN standards and norms on criminal justice and crime prevention. As the Guidance Note of the UN Secretary-General on the UN Approach to Rule of Law Assistance (2008) holds, the rule of law requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency, and all human rights, the rule of law and democracy are interlinked and mutually reinforcing and they belong to the universal and indivisible core values and principles of the UN.

Normative guidance regarding good governance, and the requirements for strong, accountable, and humane justice institutions, is elaborated as an array of standards and norms that guide the professional conduct of the judiciary, prosecutors, law enforcement officers, and prison officers:

 

Example: Code of Conduct for Law Enforcement Officers

Adopted by the United Nations General Assembly in 1979, the Code of Conduct for Law Enforcement Officers sets forth a ‘human rights-based’ understanding of the police as officials who ‘serve’ the community. This is defined as ‘a comprehensive, systematic and institutional approach to law enforcement that is consistent with international human rights standards and practices’; and one which ‘promotes actions through the tripartite obligations to respect, protect and fulfil human rights’ (OHCHR 2017, Chapter 1).

The Code of Conduct for Law Enforcement Officials (GA Resolution 34/169, 1979) affirms that law enforcement officers are not above the rule of law. In recognition of the considerable power exercised by police, special attention is focused on the use of force, accentuating international law enforcement rules on necessity and proportionality. See the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (GA Resolution 45/166, 1990). These documents address the questions of police violence, misconduct and corruption, and note the importance of effective systems of police accountability that include efficient external oversight to monitor police integrity. These documents further establish the requirement that police work be steered by a core set of clearly defined ethical values, and the implementation of a human rights-based approach to policing (a comprehensive, systematic and institutional approach to law enforcement that is consistent with international human rights standards and practices). For additional materials on these matters, see the following Modules of the E4J University Module Series on Crime Prevention and Criminal Justice: Module 4 on Use of Force and Firearms; and Module 5 on Police Accountability, Integrity, and Oversight. UNODC tools include the Handbook on Police Accountability, Oversight and Integrity (2011) and a resource book on the use of force and firearms in law enforcement (2017) jointly published with OHCHR.

Further information on the normative framework governing police conduct is available in the E4J University Module Series on Crime Prevention and Criminal Justice - specifically Module 5 on Police Accountability, Integrity and Oversight.

Public prosecutors play an essential role in strong and accountable justice institutions, as they are the "gate keepers" of criminal justice, defining and implementing penal policy, and investigating and fulfilling forensic functions, representing the state and the public good in relation to crime. The Guidelines on the Role of Prosecutors (1990) and the International Code of Conduct for Public Officials (1990) clarify the importance of binding integrity standards for all criminal justice personnel. Additional tools and materials prepared by UNODC on these topics, include: the Status and Role of Prosecutors - a UNODC and IAP Guide (2014), and an Addendum to International Association of Prosecutors Standards (2011). It is important to note that both standards on prosecutors and judges have been initially developed by professional groupings such as the International Association of Prosecutors and the Global Judicial Integrity Group, differently from most other standards which were developed by States. Hence, they are based on the professional practice and experience of prosecutors and judges from around the world and showcase the importance of judicial independence and prosecutorial autonomy. Therefore, these standards are noted, and not adopted, by the UN.

The UN has played a strong role in the development of standards and norms aimed at ensuring the balance between judicial independence and accountability. The UN Basic Principles on the Independence of the Judiciary (1985) and the Bangalore Principles of Judicial Conduct (2002) both enshrine principles of legitimacy, integrity, accountability and efficiency as prerequisite to public trust in the judicial function.

Example: Global Judicial Integrity Network

Developed under the Global Programme for the Implementation of the Doha Declaration, the UNODC Global Judicial Integrity Network has brought together more than 4,000 judges from around the world to promote exchange, among judges, about practical mechanisms to in strengthen judicial integrity and prevent corruption in the justice sector, in line with article 11 of the United Nations Convention against Corruption (2004).

Further information on judicial integrity is available in Module 14 on The Independence of the Judiciary and the Role of Prosecutors of the E4J University Module Series on Crime Prevention and Criminal Justice.

Among the initiatives of the Global Judicial Integrity Network is a series of podcasts exploring good practices with respect to a range of judicial functions, including regional cooperation, gender-sensitive judicial practice, and judicial independence.

 

Crime prevention

A separate set of standards and norms focus on crime prevention, see in particular the United Nations Declaration on Crime and Public Security (GA Resolution 51/70, 1996), the Guidelines for the Prevention of Crime (ECOSOC Resolution 2002/12, Annex), Strengthening Prevention of Urban Crime: An integrated approach (ECOSOC Resolution 2008/24) and the United Nations Guidelines for Cooperation and Technical Assistance in the Field of Urban Crime Prevention (ECOSOC Resolution 1995/9, Annex). For further materials on crime prevention, see Module 2 of the E4J University Module Series on Crime Prevention and Criminal Justice, and for materials that explore issues relating to gender, and violence against women, see Module 9 on Gender in the Criminal Justice System; and Module 13 on Violence against Women.

 
Next: Topic three - The United Nations standards and norms on crime prevention and criminal justice in operation
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