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Topic three - The United Nations standards and norms on crime prevention and criminal justice in operation
The role of UNODC
As mentioned in the Key Terms section of this Module, ECOSOC, via the Commission on Crime Prevention and Criminal Justice (CCPCJ) tasked the United Nations Office on Drugs and Crime (UNODC) to be the guardian of the UN standards and norms on crime prevention and criminal justice. UNODC’s mission is threefold in this regard:
- supporting Member States in developing and updating standards and norms;
- developing tools and training material based on the standards and norms; and
- providing technical assistance in the use and application of the standards and norms through assessments, legal and technical advice and programmes aiming at institution building and reform in requesting States.
Supporting Member States in developing and updating standards and norms
UNODC plays a key role in the development of standards and norms by bringing together member states, providing substantive advice, and developing texts that then are negotiated successively by Member States in Expert Group Meetings (EGM), Intergovernmental Expert Group Meetings (IEGM), and ultimately the CCPCJ, ECOSOC, and the General Assembly. This is a political process, and the consensus rule means that these standards and norms represent the ‘best common denominator’ between Member States.
The United Nations Congress on Crime Prevention and Criminal Justice, held every five years since 1955, also provides an invaluable source and driving force for developing these standards and norms. While the Congress no longer adopts the standards, many discussions on the need to develop standards in a particular area have been initiated at the Congresses. For instance, the Salvador Congress Declaration (2010) initiated the review of the Standard Minimum Rules for the Treatment of Prisoners, which had been in place since 1955. As a result of this declaration, the revised rules on prison standards, the United Nations Standard Minimum Rules of the Treatment of Prisoners(the Nelson Mandela Rules), were adopted in 2015.
The development of tools and training material based on the standards and norms
UNODC develops a great variety of tools for stakeholders to assist States in the implementation of the UN standards and norms. Such tools include a variety of handbooks, training curriculums and model laws which provide guidance to UN agencies, governments and individuals at each stage of crime prevention and criminal justice reform.
UNODC also has a mandate to conduct research, and to collect data and statistics in the areas of crime prevention and criminal justice. In this capacity, UNODC publishes statistics and surveys. These are often based on UN standards and norms as is the case for the UNDP/UNODC Global Study on Legal Aid (2015), UN Surveys on Crime Trends and the Operations of Criminal Justice Systems, and the UN Quinquennial Surveys on Capital Punishment and on the implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty.
Providing technical assistance in the use and application of the standards and norms
As the standards and norms reflect what Member States have agreed as benchmarks to be achieved with respect to crime prevention and criminal justice policies and strategies, they also provide a solid basis for programming in these areas. The standards and norms provide authoritative guidance for reform that accounts for differences in legal traditions, systems and structures whilst providing a collective vision of how criminal justice systems should be structured. Over a period of several decades, a significant body of related UN standards and norms has emerged, covering a diversity of issues including access to justice, treatment of offenders, justice for children, violence against children; victim protection, and violence against women. This is not a static field. Indeed, several new standards and norms have been developed over the last decade in the areas of treatment of prisoners, women offenders, legal aid, judicial integrity, violence against children and violence against women.
The standards and norms are a main pillar of UNODC’s work and make a significant contribution to promoting more effective and fair criminal justice structures in three dimensions: first, they are utilized at the national level by fostering in-depth assessments leading to the adoption of necessary criminal justice reforms; second, they help countries to develop sub regional and regional strategies; and third, the standards and norms represent universal 'best practices' that can be adapted by States to meet national needs.
Operationalizing Features of the United Nations Standards and Norms on Crime Prevention and Criminal Justice
There are several operationalizing principles that characterize UN standards and norms on criminal justice and crime prevention such as: mainstreaming non-discrimination, convergence, comprehensiveness, inclusion, practicality, and bottom up evolvement. These are explored in further detail below:
(i) Mainstreaming non-discrimination
One of these commitments is mainstreaming non-discrimination, in recognition of the multiple and intersecting justice needs of individuals. While some texts focus specifically on children, women, or victims, all UN standards and norms are underpinned by a recognition of the situations in which individuals or groups can be made vulnerable (This is not to say that individuals in these groups are inherently vulnerable – rather, structural forms of discrimination operate in direct and indirect ways to create situational vulnerabilities that require redress through a range of legal and procedural safeguards).
Vulnerability is the very condition that calls for special legislation and monitoring in the field of criminal justice and law enforcement. It is common to all crime prevention and criminal justice related rules that they relate to human beings in sensitive situations. Whether as victims, witnesses, or as accused or recognized offenders, individuals who come into contact with criminal justice actors or institutions, will at some point find themselves in positions of relative vulnerability.
Contact with the law always bears risks, especially where: there are deficits in oversight and accountability; corruption is prevalent; structural elements imperil individuals wellbeing (in dilapidated or overcrowded prisons, for example); when the criminal justice system itself is burdened with structural or institutional discrimination; or where statutory or discretionary mechanisms result in punishments that constitute torture or cruel, inhuman or degrading treatment. Legal authority can curtail the freedoms of individuals in conflict with the law in a wide range of ways. Depending on the jurisdiction, the alleged crime, the circumstances and, in some cases, police/judicial discretion, individuals that are suspected, accused or recognized as having committed an offence, can be subjected to several serious measures. These include police surveillance, investigation and/or pursuit; police/legal questioning, including adversarial cross-examination and the presentation of evidence about personal matters (including the presentation of sexual history evidence in rape trials, in some jurisdictions); the collection of forensic samples (including DNA); intimate body searches; transportation and/or restraint; deprivations of various kinds, including liberty, communication/expression and association, as well as the withholding of personal belongings including legal identification that would permit travel; punishments of various kinds, including custodial sentences, community orders, fines, public notification schemes, restraining orders, and orders that restrict movement. Across diverse legal systems, and cultures, these practices find their basis in law. i.e. these practices are, to a greater or lesser extent, often legal – even where the law serves to limit these practices (limitations on the use of force, for example, or statutory safeguards regarding the presumption of innocence). The fact remains, that irrespective of their circumstances before coming into contact with the law, individuals who face criminal investigation/sanction for an alleged breach are, by definition, vulnerable before the law. The UN standards and norms on crime prevention and criminal justice play an important role in setting rules and minimum standards to safeguard individuals made vulnerable by their criminal justice involvement.
Another notable feature of UN standards and norms on criminal justice and crime prevention is convergence, in the sense that the issue covered in each document is approached in a holistic way, with reference made to the interdependence of the provisions elaborated in existing human rights law and normative instruments. For example, the importance of restorative justice is elaborated in the Basic principles on the use of restorative justice programmes in criminal matters (2002), and also reflected in the Beijing Rules (1985), the Riyadh Guidelines (1990), Tokyo Rules (1990), the Bangkok Rules (2010), and the Doha Declaration (2015).
The UN standards and norms on criminal justice and crime prevention are comprehensive in that the normative guidance and minimum standards cover a broad range of regulatory fields. For example, norms on legal aid pertain to all stages of the criminal procedure, from pre-trial to post-conviction procedures. A further example is that the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) provide for the specificities of policing a range of assemblies, including lawful and peaceful, unlawful but non-violent, as well as violent and unlawful assemblies.
The UN standards and norms on criminal justice and crime prevention are also inclusive and overarching in the sense that the norms included are envisioned as applicable irrespective of the procedural tradition and socio-economic circumstances of each specific jurisdiction. For example, legal aid guidelines can be adopted in both inquisitorial and the adversarial models.
It needs to be added that the UN standards and norms identify target groups and stakeholders broadly. While primarily addressed to policymakers and professionals in the crime prevention and criminal justice sector/s, the potential addressees also include legislators, senior executive officers, human rights defenders, NGOs, politicians and the media. Furthermore, the scope of the documents includes both obligations for individual criminal justice actors (individual police officers, for example), while also considering the obligations and interests of law enforcement officers as a group. Attention to the latter is important for increasing efficacy and human rights-compatibility of policing work and maintaining conditions in which police officers can act as agents in upholding the human rights of those involved with criminal justice institutions. For example, the Basic Principles for the Treatment of Prisoners (1990) maintain that staff in prison should be professional civil servants, and that they should receive adequate remuneration and training. According to the Nelson Mandela Rules (2015), personnel shall be appointed on a full-time basis with security of tenure subject only to good conduct, efficiency and physical fitness, and salaries, accompanied by favourable employment benefits and conditions, shall be adequate.
The UN standards and norms on crime prevention and criminal justice are practical in the sense that some contain technical specifics as to who is responsible for informing suspects and accused persons of their entitlement to legal aid. The standards and norms are also practical in that they point to how the overuse of pre-trial detention can be reduced by adequate legal advice, assistance and representation. Together, legal aid and institutional efforts to minimize unnecessary criminal justice involvement (through the use of diversion and/or community-based sanctions) are important mechanisms to reduce the prison population (and prison overcrowding), to prevent and challenge wrongful convictions, to reduce congestion in the courts, and to reduce rates of reoffending and revictimization. Success on these measures would also bring positive financial and social ramifications, further illustrating that the standards and norms provide comprehensive guidance that has the potential to bear positive outcomes across a range of fields, not only the field of crime prevention and criminal justice. Their technicality is derived from the fact that they are developed primarily by experts and professionals working in these areas.
(v) Bottom up evolvement
It is important to recall that the UN standards and norms on crime prevention and criminal justice are most often outcomes of a broad international consensus, including bottom up, cooperation and preparation. Bangalore Principles (2002), for example, are the result of the initiative of a group of senior legal practitioners (chief justices and attorneys general) and of extensive consultations involving chief justices and senior judges from various States, drawing from different codes of judicial conduct. Recognition of this bottom-up evolvement of standards and norms is important in redressing the misconception that international legal materials are generated through top town processes, and hence do not reflect well the perspectives or values of all cultures (Levit, 2007).